Queensland Nickel Pty Ltd and Great Barrier Reef Marine Park Authority

[2014] AATA 933

[2014] AATA 933

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4496
Re	Queensland Nickel Pty Ltd
APPLICANT
And	Great Barrier Reef Marine Park Authority
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	16 December 2014
Place	Brisbane

The Tribunal directs that, within 28 days of today, the Authority lodge in the Tribunal and provide to the applicant:

(a)        a replacement page 285 with the second and third sentence, and the first word of the fourth sentence, appearing under the heading in italics, redacted; and

(b)        an unredacted page 293.

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Deputy President P E Hack SC

CATCHWORDS

LEGAL PROFESSIONAL PRIVILEGE – application to vary interim order permitting certain deletions of s 37 documents – whether privilege extends to subject matter of legal advice.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 37

CASES

Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 6) (2001) 109 IR 11
Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58
Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275; (1984) 73 FLR 205

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 29

REASONS FOR DECISION

Deputy President P E Hack SC

16 December 2014

1. In the underlying application Queensland Nickel Pty Ltd (Queensland Nickel) seeks review of a decision of the Great Barrier Reef Marine Park Authority (the Authority) to refuse to grant Queensland Nickel a permit authorising it to have a pipeline within the Marine Park.

2. I am presently concerned with an application by the Authority for orders pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) in relation to parts of two documents lodged by the Authority in compliance with s 37 of that Act. On 7 November 2014, I made an interim order permitting the Authority to lodge the s 37 documents with parts of two documents, T21 and T29, containing certain deletions. Pursuant to liberty given by that order, Queensland Nickel now applies to vary it. No issue is taken in relation to the deletion of parts of document T21; the application concerns deletions made on the basis of a claim for legal professional privilege to document T29 at pages 285 and 293.

3. Document T29 is described as a “permit assessment”. It represents the primary determination by an official within the Authority of Queensland Nickel’s application for a permit. Originally, and in its solicitors’ letter of 7 November 2014, the Authority contended that all of a particular paragraph on page 285 was the subject of a claim for legal professional privilege. At the hearing Mr Del Villar, counsel for the Authority, refined the claim to the second and third sentences of that paragraph and the first word of the fourth sentence. On page 293 one paragraph, comprising two lines, is the subject of a similar claim.

4. Mr Livingston of counsel, who appeared with Mr Conde of counsel for Queensland Nickel, accepted that legal professional privilege was an available basis for redacting the s 37 documents. His submissions emphasised that it was for the Authority to fully articulate the claim with proper evidence to support it. He was critical of the lack of detail provided in the affidavit of Ms Tanya Renton, an acting senior legal officer in the employ of the Authority. There is force in that criticism however it is abated somewhat by an inspection of the passages in issue, an inspection I undertook with the concurrence of the parties.

5. At the outset I should say that I am proceeding on the premise that a claim for legal professional privilege:

   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.[1]

   It is apt to emphasise that it is the communication that is protected. Here, so far as the passage on page 285 is concerned, Ms Renton’s affidavit establishes that the subject matter of the claim is “preliminary legal advice” given to the Authority by lawyers, who are all lawyers holding practising certificates and who provide independent legal advice to the Authority. The fact that Ms Renton does not identify the occasion of the provision of that advice or the person giving it is, I think, explained by the passage itself.

   [1]           The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002)

   213 CLR 543; [2002] HCA 29 at [9].

6. I am satisfied that disclosure of the passages in issue would reveal the content of communications between the Authority and its lawyers. I uphold the modified claim made in relation to page 285.

7. The passage on page 293 is in a different position. As to it, Ms Renton’s evidence does not go beyond saying that a request had been made for advice in relation to the matter referred to in the passage. Reference to that passage shows that it refers to the fact of advice having been sought, not the content of the advice. Moreover there is nothing in the context of the overall document from which the content of the advice might be inferred; the passage itself is quite bland.

8. Mr Del Villar submitted that privilege attaches to the subject matter or topic of advice as well as to the advice itself but could point to no authority for the proposition. In my view the authorities are to the contrary.

9. Packer v Deputy Commissioner of Taxation[2] concerned statutory access by the Deputy Commissioner to trust account ledgers in the custody or under the control of Mr Packer’s solicitors. A claim was made that disclosure of the ledgers would tend to reveal the nature of confidential advice given by the solicitors. The learned chamber judge rejected the claim on the basis that the cards recorded the movement of monies and the broad nature of the matter the subject of the retainer. On the appeal Andrews SPJ said:[3]

   I agree with his Honour, that it is impossible to divine from the sample trust account ledgers the nature of the matter or matters submitted to the solicitors for advice or the nature thereof. Essentially what are protected from disclosure are communications between solicitor and client. Disclosure of the nature of a transaction or matter in respect of which legal advice is sought or given is not privileged unless the disclosure reveals the communication itself, which may occur in the case of detailed bills of costs for example.

   The same ledger cards, of which there were two, reveal no communication between client and solicitor and were obviously not brought into existence for the purpose of giving or receiving advice or for use in existing or anticipated litigation.

   To similar effect McPherson J said:[4]

   It has long been acknowledged that the justification for recognizing legal professional privilege is the public interest in the proper administration of justice according to law: see the note to Beavan v Waters (1828) M. & M. 235; 173 E.R. 1143, and Baker v Campbell (1983) 57 A.L.J.R. 749, 766, per Wilson J.; 771, per Brennan J. No such interest is raised by entries in a solicitor’s trust account ledger except to the extent that such entries record communications referable to the relationship of solicitor and client in a professional sense.

   [2] [1985] 1 Qd R 275; (1984) 73 FLR 205.

   [3] [1985] 1 Qd R 275 at 276 – 7.

   [4] [1985] 1 Qd R 275 at 287 – 8.

10. Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd[5] concerned the issue of whether disclosure of memoranda of fees waived privilege in respect of underlying documents. Justice Tamberlin, who inspected the documents, concluded that they did not disclose “the nature or content of privileged material”.[6] And, in Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 6),[7] Boland J, when dealing with a bill of costs, referred to the “content” of the advice as being privileged. His Honour said:[8]

    Whether a bill of costs contains privileged information is a matter for judgment in particular cases.

    [5] (1994) 126 ALR 58.

    [6]           At 68.

    [7] (2001) 109 IR 11, 16.

    [8]           At 15.

11. One cannot exclude the possibility that, in some circumstances, disclosure of the topic of legal advice might tend to disclose the content of the advice, however I do not consider there to be a general rule to that effect. Moreover, having regard to what is said on page 293, disclosure of that passage setting out the topic of the advice could not possibly disclose the nature of any advice provided.

12. It follows that I do not accept the Authority’s claim for legal professional privilege over the passage or page 293.

13. The result is that I will direct that the Authority lodge in the Tribunal and provide to the applicant:

    (c)a replacement page 285 with the second and third sentence, and the first word of the fourth sentence, appearing under the heading in italics, redacted; and

    (d)an unredacted page 293.

    Against the possibility that the Authority might wish to test that ruling I will direct that that be done within 28 days of today.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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Associate

Dated 16 December 2014

Date of hearing	8 December 2014
Counsel for the Applicant	Mr L Livingstone
Counsel for the Respondent	Mr G Del Villar