Sekhon v The Director of Quarantine

The applicant, Mr Sekhon, sought judicial review of a decision made by the Director of Quarantine. The core of the dispute concerned the reasons for the decision, with the applicant alleging that the Director's stated reasons were not those that underpinned the decision at the time it was made. The matter came before Judge Simpson.

The court was required to determine whether legal advice obtained by the Director of Quarantine after the initial decision was made, but before a subsequent statement of reasons was provided, was relevant to the review. Specifically, the court had to consider whether the Director’s assertion that the later statement of reasons reflected the state of mind at the time of the original decision was credible, and if so, whether the legal advice was inextricably linked to the production of that statement of reasons, thereby potentially waiving legal professional privilege.

Judge Simpson reasoned that the Director’s contention that the legal advice could not have contributed to the decision because it post-dated the decision was flawed. The applicant disputed the assertion that the reasons articulated in the later statement were extant at the time of the original decision. The court found that the Director, by filing a subsequent statement of reasons that was partly inconsistent with earlier communications, had raised the question of what the actual reasons for the decision were. The applicant argued that the legal advice was likely to have influenced the Director's state of mind when producing the later statement of reasons, and therefore was relevant to assessing the credibility of the assertion that those reasons were operative at the earlier date. The court considered that the principle of issue waiver arises from inconsistencies between a party's conduct and their claim to confidentiality, and that fairness dictates the applicant should be able to test the Director's assertion about the reasons for the decision by reference to the advice that contributed to its formulation. The court noted that the situation was distinct from cases where a decision-maker merely states that advice was relevant; here, the Director's assertion about the timing of the reasons laid the contents of the privileged documents open to scrutiny.