Sernack & ACT Treasury.

[2010] ACAT 40

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MERRILYN SERNACK & ACT DEPARTMENT OF TREASURY

(Administrative Review) 2010 ACAT 40

AT 10/02

Catchwords: Freedom of Information Act 1989 - Exempt Documents-Section 42-Legal Professional Privilege-Dominant Purpose

Legislation: Discrimination Act 1991

Public Interest Disclosure Act 1994

Freedom of Information Act 1989, ss 42(1), 71, 21(1)(b)

Evidence Act 1995 (Cth)

Authority: Baker v Campbell (1983) 153 CLR 52

Commonwealth of Australia v Dutton (2000) FCA 1466
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999], HCA 67

Grant v Downs (1976) HCA 63

Mann v Carnell (1999) HCA 66

Waterford v The Commonwealth [1987] HCA 25

Tribunal:                  Mr GJ Lunney SC, Member

Date of Orders:  3 August 2010            
Date of Reasons for Decision:         3 August 2010

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )   AT 02 of 2010

BETWEEN:   MERRILYN SERNACK

Applicant

AND:   ACT DEPARTMENT OF TREASURY

Respondent

TRIBUNAL:            Mr GJ Lunney SC, Member

DATE:  3 August 2010

ORDER

1.The Tribunal agrees with the Decision under review and dismisses the Application for Review of Decision filed on 15 January 2010.

………………………………..

Mr GJ Lunney SC
Member

REASONS FOR DECISION

1.The applicant applied for review of two Freedom of Information (FOI) decisions made by the ACT Department of Treasury. The first of these related to a complaint lodged with the ACT Human Rights Commission alleging discrimination under the Discrimination Act 1991 by officers within the ACT Treasury Department. The second related to a disclosure that she had made under the Public Interest Disclosure Act 1994.

2.Of these, the applicant withdrew her application for review of the disclosure application at the commencement of proceedings. The hearing proceeded in relation to the list of documents at pages 53 and 54 of the Tribunal Documents for which exemption had been claimed.

3.The complaint to the Human Rights Commission (HRC) was in fact withdrawn on 15 June 2009.

4.The applicant alleged that the respondent had withheld disclosure of those listed documents on the ground of exemption under Section 42 of the Freedom of Information Act 1989, and she wished to challenge that decision. Section 42(1) provides as follows:

42       Documents subject to legal professional privilege

(1) 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.

5.It has been held that the legal professional privilege referred to in this Section is not the same as ‘client legal privilege’ referred to in the Evidence Act 1995 (Cth) - Esso Australia Resources Ltd v Federal Commissioner of Taxation[1999] HCA 67, Commonwealth of Australia v Dutton [2000] FCA 1466. It is the concept of legal professional privilege developed by the common law which is referred to in Section 42.

6.In Esso, Gleeson CJ, Gaudron and Gummow JJ said:

... As was pointed out in Mann v Carnell [1999] HCA 66, the circumstances in which legal professional privilege may apply are not limited to the adducing of evidence. As in the present case, the privilege may be invoked in other circumstances, such as discovery and inspection of documents. Documents may be discoverable, or the subject of a demand for inspection, even though they are not admissible in evidence. They may be significant, for example, because they open up a line of inquiry. Furthermore, in this country, the application of the privilege is not confined to judicial or quasi-judicial proceedings, Baker v Campbell [1983] HCA 27 . On any view, the ambit of the common law doctrine of legal professional privilege in Australia exceeds that of the relevant provisions of the Evidence Act. Given the specific and limited heads of legislative power in s 51 of the Constitution, there also may be questions as to the extent of the legislative power of the Parliament to deal with the privilege, apart from its operation in relation to judicial proceedings under Ch III.

7. It is necessary to show that the communication that was made was a confidential one, and that there was a client/legal practitioner relationship between those seeking and giving legal advice. The common law test of legal professional privilege provides that privilege will attach to a confidential communication, oral or in writing, made for the dominant purpose of obtaining or giving legal advice or assistance or of use in legal proceedings.

8. Pursuant to Section 71 of the Freedom of Information Act 1989, the respondent bears the onus of adducing evidence to establish that legal professional privilege applies to the documents for which exemption is claimed. Its provisions are as follows.

71       Onus

In proceedings under this part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the ACAT should give a decision adverse to the applicant.

EVIDENCE

9. The Treasury Department received notification of the applicant’s complaint by letter dated 8 May 2009, on 12 May 2009. It pointed out that the Commission was obliged to deal with complaints promptly and efficiently. The letter said the Commission endeavoured to finalise its consideration process within 70 days of receipt of a complaint. The letter sought what appeared to be quite an extensive amount of information. It requested the Department’s response by 29 May 2009 ‘at the latest’. Finally it said that if the complaint was not resolved in the commission, it could be deal with in the Tribunal.

10. Evidence was given by Ms Kirsten Thompson, Director of the Office of the Under Treasurer in the Department of Treasury; and, by Ms Heidi Robinson, a solicitor employed in the office of the ACT Government Solicitor (ACTGSO).

11. Ms Thompson said that she was authorised to seek advice and give instructions to the ACTGSO, and had dealt with that office on many occasions. After receiving the complaint, she sought advice from the ACTGSO because she was not familiar in detail with the area, but was aware that litigation could result and did not want to make any error that could prejudice later litigation. She regarded all communications between her Department and the ACTGSO as being confidential. In a Statement dated 20 April 2010, she describes in general terms the content and purpose of the various documents in respect of which exemption is claimed.

12. The respondent also relied on evidence from Ms Heidi  Robinson, a solicitor employed in the office of the ACT GSO. She was the solicitor advising the Treasury officers. She said that ACTGSO staff would treat their instructions from ACT agencies as confidential, and keep confidential any advice they gave to government agencies. She said that it was not regarded as necessary to state this explicitly when dealing with an officer from a client department. She regarded all her communications with the Treasury Department officers as being confidential. She did not describe the individual communications that passed between herself and the Treasury Department, but said that they had been correctly set out in the statement of Ms Thompson.

13. Copies of the documents in respect of which exemption was claimed were provided to the Tribunal by the respondent. They appear to be as described by Ms Thompson in her statement, and consist of emails, some of the later of which have draft documents attached to them. In her statement, Ms Thompson refers to these by folio numbers as is done in the list at pages 53/4 of the Tribunal Documents.

14. Of the emails, Folios 31-32 and 35 were internal emails. In Folios 31-32, Ms Thompson forwarded emails, Folios 28-30 between Ms Thompson and Ms Robinson, to the Chief Executive, Ms Smithies, for information. Folio 35 was Ms Smithies’ response. Folios 156 to 160 were described as material concerning the HRC matter provided by Graeme Dowell. These were not documents being communications between solicitor and client, but documents prepared and communicated for internal purposes relating to the complaint by the applicant.

THE APPLICANT'S SUBMISSIONS

15. The applicant submitted firstly that the dominant purpose of the communications for which exemption was claimed was so that the Treasury Department could respond to a request for information that had been sent by the Human Rights Commission. That request was contained in the letter of 8 May 2009 previously referred to.

16. A dominant purpose test was proposed by Barwick CJ in his judgment, dissenting  in principle but agreeing in result, in Grant v Downs [1976] HCA 63. He defined the common law test at paragraph [2.], and then went on to say in paragraph [4.] “But I am unable to accept that the purpose of obtaining advice or of use in litigation should not be a primary purpose. As I have indicated, in my opinion, that should be the dominant purpose of the production of the document.”

17. He enlarged upon this statement later in paragraph [5.] “It seems to me to be preferable to test the status of each document according to the purpose of its production and not to erect categories of documents so as to facilitate some mechanical, almost computerized, resolution of the question of the right to withhold a document from inspection. For my part, I prefer the word "dominant" to describe the relevant purpose. Neither "primary" nor "substantial", in my opinion, satisfies the true basis of the privilege.”

18. Earlier comments about legal privilege by His Honour at paragraph [3.] are also helpful.

In the application of this principle, the fact that the person who produced, or the person or authority who or which directed the production of the document, had in mind other uses of the document will not preclude that document being accorded privilege, if it were produced with the requisite dominant purpose. Further, the circumstance that the document is a "routine document" will not be definitive. The dominant purpose of its production may none the less qualify it for professional privilege. Whether or not a document does so qualify is a question ultimately to be decided, if need be, upon an inspection by the judge of the document itself, and by the application of the stated principle. I say "if need be" because where the judge who hears the application for inspection may possibly be the trial judge, sitting without a jury, it may be better to decide the matter upon the evidence as to the purpose of the production of the document rather than upon an inspection of it, thus avoiding any complication which might arise from the document having been seen by the judge and privilege from inspection accorded to it. ”

19. Barwick CJ’s analysis was accepted by the High Court in Esso when it replaced the ‘sole purpose’ test with a ‘dominant purpose’ test for common law purposes.

20. On the evidence of Ms Thompson and Ms Robinson, and inspection of the documents themselves, it is clear that the Department’s approach to the ACTGSO was for advice on a much broader front than simply responding to the request for information contained in the HRC letter of 8 May 2009. Their purpose was initially to request advice from the ACTGSO about dealing generally with the applicant's complaint, to follow up on that advice, and then to work together in preparation for response to the complaint, which included preparing for anticipated litigation. Providing a response to the HRC’s request for information was only one facet of this process.

21. The applicant pointed to the possibility of successful mediation of the dispute, expressing the view that this was likely to have occurred, and thus litigation could not reasonably have been anticipated. No litigation was commenced, and successful mediation was always a future possibility during the time that the subject communications came into existence. Although mediation could possibly have avoided the need for litigation, on the evidence, litigation was in fact anticipated and had to be prepared for even though its occurrence was not a certainty.

22. It was also submitted that non-privileged material in the documents should be released with privileged material excised. Section 21 of the Freedom of Information Act 1981 provides in Sub-Section 1(b) for such excision where:

(b) it is possible for the agency or Minister to make a copy of the

document with such deletions that the copy would not be an

exempt document and would not, because of the deletions, be

misleading

23. Privilege applies to the whole document, and from a practical point of view it would be highly difficult to undertake the suggested exercise since to do so would rob the documents of all meaning. This would particularly be the case where draft documents were attached to emails.

24. Further submissions were made relating to alleged imperfections in the decision making process within the Department relating to the applicant’s FOI request. The Tribunal considers it unnecessary to deal with these submissions since the decision of the Tribunal is based on the evidence before it and is independent of any previous decision making process within the Department.

CONCLUSION

25. The letter from the HRC was referred by Ms Thompson to ACTGSO by email on the same day it was received, requesting advice. Ms Thompson refers in her Statement to having spoken to Ms Robinson of that office on the same day advising of her intention to seek advice.

26. It is well established that a Government Solicitor’s Office can stand in a solicitor/client relationship with a Government Department or employee –Waterford v The Commonwealth [1987] HCA 25. The evidence also establishes that the communications between ACTGSO and the Treasury Department were intended to be confidential.

27. Commencing from 12 May 2009, the Treasury Department sought legal advice from the ACTGSO regarding the handling of the complaints that had been made to the HRC . The evidence indicates that the dominant purpose for communicating with the ACTGSO was to seek legal advice in relation to those complaints. Communications in furtherance of that purpose were consequently subject to legal privilege.

28. Thus, communications between Ms Thompson and Ms Robinson regarding the complaint were subject to privilege which extended to the emails to and from Ms Smithies, the Chief Executive. The email at Folios 156-160 from Mr Dowell, an officer of the Department, was a document prepared for the dominant purpose of the Department using the information in an anticipated legal proceeding.

29. The Tribunal therefore agrees with the Decision under review and dismisses the Application for Review of Decision filed on 15 January 2010

………………………………..

Graeme Lunney SC

Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      AT 10/02

APPLICANT:                
RESPONDENT:            

COUNSEL APPEARING:       APPLICANT:          MERRILYN SERNACK

RESPONDENT:      DEPARTMENT OF TREASURY

SOLICITORS:  APPLICANT:          

RESPONDENT:      MR DOUG JARVIS

TRIBUNAL MEMBER/S:        Mr G Lunney              Member

DATE/S OF HEARING:          18,19,20 May 2010     PLACE: CANBERRA

DATE/S OF DECISION:          3 August 2010            PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: