Singh and Commonwealth Ombudsman (Freedom of information)
[2022] AATA 2597
•15 August 2022
Singh and Commonwealth Ombudsman (Freedom of information) [2022] AATA 2597 (15 August 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2020/5740 & 2020/7746
Re:Pravindra Kumar Singh
APPLICANT
Commonwealth OmbudsmanAnd
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:15 August 2022
Place:Sydney
The two reviewable decisions are affirmed.
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Deputy President B W Rayment OAM QC
CATCHWORDS
FREEDOM OF INFORMATION – whether access to certain documents pursuant to the Freedom of Information Act 1982 (Cth) may be granted, either wholly or in part – whether documents are exempt or conditionally exempt – whether documents attract legal professional privilege – reviewable decisions affirmed.
LEGISLATION
Evidence Act 1995 (Cth)
Freedom of Information Act 1982 (Cth)
Judiciary Act 1903 (Cth)
CASES
Australian Hospital Care Pty Ltd v Duggan (No. 2) [1999] VSC 131
Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82
AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (with Corrigendum date 25 October 2006) [2006] FCA 1234
Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649
Commonwealth of Australia v Dutton [2000] FCA 1466
Commonwealth of Australia & Anor v Vance [2005] ACTCA 35; (2005) 158 ACTR 35
Crompton (Alfred) Amusement Machines Ltd v Customs & Excise Commissioner (No. 2) [1972] 22 QB 102
Ransley and Commissioner of Taxation (Freedom of information) [2015] AATA 728
Re Alex Proudfoot and Human Rights and Equal Opportunity Commission No: A92/4 Aat [1992] AATA 317
Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365
Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54
SECONDARY MATERIALS
G.E. Dal Pont, Lawyers’ Professional Responsibility, 7th ed, Law Book Co
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
15 August 2022
Mr Singh made two freedom of Information requests of the Commonwealth Ombudsman. Each has been the subject of a review application in the Tribunal. The applications came before the Information Commissioner, who decided that the interests of the administration of justice made it desirable that this Tribunal consider each reviewable decision.
The parties agreed to deal with both reviewable decisions together.
Many of the documents in issue between the parties are claimed to be wholly or partially exempt from production under s.42 of the Freedom of Information Act 1982 (Cth) (the Act).
Other documents are said to be wholly or partially exempt under sections 47(1)(b), 47E(c) and 47E(d) of the Act. Section 47E provides for conditional exemptions only, therefore raising public interest questions under s.11A(5) of the Act.
No search issues arise on this review.
The applicant, represented by a solicitor of the same surname, submitted that since some legal practitioners employed in the Ombudsman’s office do not hold practising certificates, insofar as advice given by such persons it cannot attract legal professional privilege.
There is a requirement for a legal practitioner (other than an AGS lawyer under the Judiciary Act 1903 (Cth) (the Judiciary Act)) to hold a practising certificate. There is, however a decision of the Court of Appeal of the ACT Supreme Court to the effect that a communication by a duly qualified lawyer admitted to practice by a court but not holding a practising certificate attracts legal professional privilege as specified in the Evidence Act 1995 (Cth) (the Evidence Act). That case is Commonwealth of Australia & Anor v Vance [2005] ACTCA 35; (2005) 158 ACTR 35 (Gray Connolly and Tamberlin JJ) (Vance)
That Court of Appeal decision, however, related to legal professional privilege under the Evidence Act. The trial judge, whose decision was overruled by the Court of Appeal, had decided the case based upon common law principles.
The Evidence Act test does not affect s.42 of the Act which depends upon the common law test for legal professional privilege: See the judgment of Wilcox J in Commonwealth of Australia v Dutton [2000] FCA 1466 at [2]. That statement made by Wilcox J expresses agreement with a matter that was common ground and is arguably obiter dicta. However, the Full Court of the Federal Court laid down that the Tribunal is bound by dicta enunciated by the Federal Court, and in any event, if I were not bound by it, I respectfully agree with Wilcox J.
The question whether at common law, and in cases not covered by statute, legal advice given by an employed solicitor who does not have a practising certificate is one which may require further resolution in the courts.
The applicant cited Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 (Waterford), per Deane J. at CLR page 81. Speaking of a judgment of Lord Denning in Crompton (Alfred) Amusement Machines Ltd v Customs & Excise Commissioners[(No.2) [1972] 2 QB 102, at page 129, Deane J said: “[i]t would, however, seem, that Lord Denning’s statement that salaried legal advisers are regarded by the law “as in every respect in the same position as those who practice on their own account” with the “only difference … that they act for one client only, and not for several clients” would not be true of this country unless one restricted the category to persons who, in addition to any academic or other practical qualifications, were listed on a roll of current practitioners, held a current practising certificate, or worked under the supervision of such a person”.
Deane J was in dissent in the case, but that statement expressed no dissent from the majority, who did not discuss practising certificates. Insofar as advice given by AGS lawyers were involved in relevant advice, those lawyers, acting as such needed no practising certificate: see Judiciary Act 1903 (Cth) s.55Q. Government lawyers working for the Department of Defence were not, of course, AGS lawyers.
Although Vance discussed Waterford, it did not need to discuss the remark of Deane J quoted in [11] above, because Waterford was decided before the Evidence Act was passed and was based on common law privilege. The Court of Appeal commented that based upon Waterford and other cases cited before the trial judge (Crispin J) “it was possible to conclude” that for the purpose of the privilege at common law, in order to place salaried legal officers on the same footing as legal advisers, the salaried legal advisers should be practising barristers or solicitors. Vance was a decision depending on the provisions of the Evidence Act, by reason of a provision of the Supreme Court rules, which were amended after the commencement of the proceedings at first instance, to make that provision. Therefore, the Court of Appeal did not need to decide whether the statement of Deane J in Waterford set out in [11] above was a definitive statement of the position at common law.
Another point to note about Waterford, is that in the joint judgment of Mason and Wilson JJ at page 62, it was said that before privilege will attach to advice given by salaried employed solicitors there must be a professional relationship which secures to the advice an independent character notwithstanding the employment. Brennan J made a similar remark at pages 70-71.
Lee J remarked in Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649 at [102] that none of the other justices in Waterford mentioned the requirement for practising certificates stated by Deane J. Lee J referred to s.55D of the Judiciary Act which his Honour held entitled the government lawyers in question to practice without practising certificates. That section has now been repealed. Such a provision so long as it was part of statute law may effectively overcome the statement of principle of Deane J. in any event.
Lee J did not, in my opinion, decide that the statement of Deane J was not a definitive statement of the position at common law.
There is also a decision of Young J in AWB Limited v Honourable Terence Rhoderic Hudson Cole(No 5)(with Corrigendum dated 25 October 2006) [2006] FCA 1234 at [44]. That paragraph seeks to collect authorities and summarise their results in a general way. His Honour does not resolve the particular question which may arise in this matter about the relevance to common law legal professional privilege.
The matter was also discussed in first-instance decisions in the Queensland and Victorian Supreme Courts. The Victorian case is Australian Hospital Care Pty Ltd v Duggan (No. 2) [1999] VSC 131. In that case Gillard J referred to the joint judgment of Mason and Wilson JJ in Waterford at page 62, and to the judgment of Brennan J at 70-71, for the proposition that salaried legal advice must have an independent character notwithstanding the employment. Boddice J in the Supreme Court of Queensland in Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 at [23] referred to Vance for the proposition that the lack of a current practising certificate, whilst a very relevant factor in determining whether legal professional privilege exists in respect of advice given by inhouse legal representatives, is not determinative of the existence of privilege. Vance was, as noted above, not a decision about common law privilege. His Honour also adopted the reasons of Gillard J for the need for employed solicitors to be independent, despite the employment. Boddice J at [23] said that the lack of a practising certificate “whilst a very relevant factor in determining whether legal professional privilege exists in respect of advice given by inhouse legal representatives, is not determinative of the existence of privilege”. That statement, which seems to be inconsistent with the statement of Deane J, was footnoted to refer to the Court of Appeal decision in Vance, which, as noted above, was not a case about common law privilege.
There are also a number of decisions in the Tribunal, including Ransley and Commissioner of Taxation (Freedom of information) [2015] AATA 728, Re Alex Proudfoot and Human Rights and Equal Opportunity Commission No: A92/4 Aat [1992] AATA 317 and Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365, all of which are referred to in the Information Commissioner’s Guidelines, and may require consideration within the Tribunal if the question relating to Deane J’s statement about the need for practising certificates requires decision.
I have now examined each of the various documents said to be exempt under s.42 of the Act, that is, documents 11 (and 26), 12, 15,17, 18 (which relates to the litigation rather than advice and is referred to further below), 19 (which is in the same category as document 18), 20, and 27, and it appears to me that all of the legal advice involved in those communications was given by officers of the Australian Government Solicitor to the respondent. Those officers did not require a practising certificate in order to practise, because of s.55Q of the Judiciary Act.
As is deposed to in the affidavit of Ms Lisa Collett at paragraph 20, the purpose of the involvement of the legal staff of the respondent was to obtain and consider legal advice about and arising from the proceedings. A consideration of the documents has satisfied me that the provider of the legal advice was AGS in each case. Therefore, these reasons do not need to seek to resolve the questions arising from the separate reasons of Deane J in Waterford concerning the requirement of inhouse lawyers in Australia giving legal advice to have a practising certificate. The only involvement of the lawyers employed by the respondent seems to be the doing of administrative acts, and not the giving of advice.
Documents 18 and 19 are communications of a professional nature from the AGS to a client touching the subject matter of the lawyer’s retainer and thus prima facie privileged: see G.E. Dal Pont, Lawyers’ Professional Responsibility, 7th ed, Law Book Co, paragraph 11.30 at page 386. The documents relate to litigation strategy and the approval of expenditure for that purpose.
The applicant submitted in its statement of facts, issues and contentions that the claims for legal professional privilege are answered on the basis that the delegate deployed advice given by the AGS to achieve an ulterior objective, and on the basis that the respondent was guilty of corruption and impropriety. None of those allegations are supported by any of the evidence. Nor do they impugn the conduct of the giver of the legal advice, namely AGS.
Similarly, and contrary to submissions made by the applicant there is no evidence of waiver.
Other exemptions
Documents said to be conditionally exempt under s.47F of the Act are documents 2, 3, 4, 5, 6, 7, 11, 14, 19, and 20. They contain personal information about details of staff below SES level from the respondent’s office, Home Affairs and (subject to what is said below) the former Department of Industry, Innovation and Science.
Documents 2-7 inclusive seek to redact the name, email address and phone number of a member of staff of Home Affairs, and the phone number and email addresses of Shirley Tong.
Document 11 seeks to redact the mobile phone number of a lawyer employed by the respondent.
Document 14 seeks to redact the surname and email address of a member of staff of the respondent and the email address and designation of another staff member of the respondent.
Document 19 seeks to redact the surname, direct phone number and email address of a lawyer employed by the respondent.
Document 20 redacts the surname of a lawyer employed by the respondent.
All of the redactions are personal information with s.4 of the Act.
The respondent puts the public interest question by reference to the affidavit of Ms Collett at paragraphs 23-42. The cross-examination of Ms Collett did not address those paragraphs of her affidavit.
It may well be that pressing for the personal details in question is unusual. That is my own experience with this legislation. The affidavit of Ms Collett persuades me that it is not in the public interest for these personal details of public servants to be released. In particular, the departmental practices mentioned in paragraphs 25, 26, 28, 29-32, 35, 41, and 42 satisfy me that it is not in the public interest for the personal details to be released.
So far as I can see no personal details are given in the various documents in the combined schedule giving personal details of the officers of the former Department of Industry, Innovation and Science, unless they are embodied in other exempt documents.
Finally, certain documents are said by the respondent to be beyond the scope of the FOI requests made by the applicant. They are documents 13, 16, 21, 22, 23, 24 and 25. The particulars of the reasons why those documents are out of scope were not the subject of any oral or written submissions made by the applicant. The reasons why the documents are out of scope are stated in the combined schedule, which are self-explanatory. Each of documents 13, 16, 21, 22, 23, 24 and 25 are out of scope for those reasons. The requests are T3 in each bundle of section 37 documents.
Conclusion
For the reasons stated above, the two reviewable decisions are affirmed.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
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Associate
Dated: 15 August 2022
Date(s) of hearing: 4 April 2022 Date final submissions received: 15 June 2022 Solicitor for the Applicant: Mr A Singh Solicitor for the Respondent: Mr J Davidson, AGS
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