The Legal Practitioners Conduct Board v Wharff - [2009] SADC 126

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
THE LEGAL PRACTITIONERS CONDUCT BOARD v WHARFF
[2009] SADC 126
Judgment of His Honour Judge Herriman
20 November 2009
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - DOCUMENTS CONCERNING THE OPERATIONS OF AGENCIES
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - DOCUMENTS SUBJECT TO LEGAL PROFESSIONAL PRIVILEGE
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - INTERNAL WORKING DOCUMENTS
Respondent seeking access to documents held by Legal Practitioners Conduct Board - Board refusal based on exemption clauses 9 and 10 of Schedule 1 of the FOI Act - absence of particularised response - Ombudsman disallows exemption claims - permission to appeal - merits of appeals - referral to Ombudsman with directions and recommendations.
Freedom of Information Act 1991 (SA) ss 4, 12, 14, 14A, 20, 23, 29, 39, 40, 48, Schedule 1 clauses 9 & 10; District Court Act 1991 (SA) ss 42B, 42D, 42E, 42F; Legal Practitioners Act 1981 (SA) ss 74, 75, 76, 77AB, 82 ; Ombudsman Act 1972 (SA) ss 13, 18; Freedom of Information Act 1993 (Cth) s 42, referred to.
Repatriation Commission v Hill [2002] FCAFC 192; Southern Adelaide Health Service Inc v C & Ors; Case Stated on Acquittal (No 1 of 2006) (2007) 97 SASR 556; Grant v Downs (1976) 135 CLR 674; Esso Australia Resources v FCT (1999) 201 CLR 49; Waterford v The Commonwealth (1987) 163 CLR 54; Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No 2) [1972] QB 102; Ritz Hotel v Charles of the Ritz (1987) 14 NSWLR 100; Australian Hospital Care Pty Ltd & Anor v Duggan & Ors (No 2) [1999] VSC 131; Trade Practices Commission v Sterling (1979) 36 FLR 244; Workcover Authority (NSW), (General Manager) v Law Society of NSW (2006) 65 NSWLR 502; Brookfield Multiplex Ltd v International Litigation Funding Partners PL (No 2) [2009] FCA 449, applied.

THE LEGAL PRACTITIONERS CONDUCT BOARD v WHARFF
[2009] SADC 126
Introduction

The appellant, the Legal Practitioners Conduct Board (‘the Board’), has appealed, pursuant to s 40 of the Freedom of Information Act 1991 (‘the FOI Act’), against determinations of the Acting Ombudsman (‘the Ombudsman’) made on 3 September 2008 that particular documents sought by the respondent from the appellant under that Act are not exempt documents within the meaning of clauses 9 and 10 of Schedule 1, Part 3 of the FOI Act (hereafter referred to as clauses 9 and 10) and ought to be released to the respondent.
The FOI Act
Relevant provisions of the Act are:
4—Interpretation
…
agency means—
(a) a Minister of the Crown; or
(b)a person who holds an office established by an Act; or
(c) an administrative unit under the Public Sector Management Act 1995; or
(d) South Australia Police; or
(e) a council; or
(f) any incorporated or unincorporated body—
(i)established for a public purpose by an Act; or
(ii) established for a public purpose under an Act (other than an Act providing for the incorporation of companies or associations, co-operatives, societies or other voluntary organisations); or
(iii) established or subject to control or direction by the Governor, a Minister of the Crown or any instrumentality or agency of the Crown or a council (whether or not established by or under an Act or an enactment);
…
12—Right of access to agencies' documents
A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act.
…
14—Applications to be dealt with by certain persons and within certain time
(1)    An application will be dealt with on behalf of an agency by an accredited FOI officer of the agency.
(2)    An application must be dealt with as soon as practicable (and, in any case, within 30 days) after it is received.
14A—Extension of time limit
(1) The principal officer of an agency that is dealing with an application may extend the period within which the application would otherwise have to be dealt with under section 14 if satisfied that—
(a) the application is for access to a large number of documents or necessitates a search through a large quantity of information and dealing with the application within that period would unreasonably divert the agency's resources from their use by the agency in the exercise of its functions; or
(b) the application is for access to a document in relation to which consultation is required under Division 2 and it will not be reasonably practicable to comply with Division 2 within that period.
(2)    An extension under subsection (1) must be for a reasonable period of time having regard to the circumstances.
(3)    The extension must be effected by giving written notice of the extension to the applicant within 20 days after the application is received.
(4)     Such a notice must specify—
(a)    the period of the extension; and
(b)    the reasons for the extension; and
(c)    the rights of review and appeal conferred by this Act.
(5)    An extension under subsection (1) is a determination for the purposes of this Act.
…
20—Refusal of access
(1)             An agency may refuse access to a document—
(a)    if it is an exempt document;
…
(4)     If—
(a)    it is practicable to give access to a copy of a document from which the exempt matter has been deleted; and
(b)    it appears to the relevant agency (either 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,
the agency must not refuse to give access to the document to that limited extent.
…
23—Notices of determination
(1)             An agency must notify an applicant in writing—
(a)    of its determination of his or her application; or
(b)    if the application relates to a document that is not held by the agency—of the fact that the agency does not hold such a document.
(2)    Such a notice must specify—
(a)the day on which the determination was made; and
(b) —
(i) the name and designation of the officer by whom the determination was made; and
(ii) the rights of review and appeal conferred by this Act; and
(iii) the procedures to be followed for the purpose of exercising those rights;
…
(f) if the determination is to the effect that access to a document is refused—
(i) the reasons for the refusal, including—
(A) the grounds for the refusal under section 20(1); and
(B) if a ground for the refusal is that the document is an exempt document—the particular provision of Schedule 1 by virtue of which the document is an exempt document and, if under the provision disclosure of the document must, on balance, be contrary to the public interest in order for the document to be exempt, the reasons why disclosure of the document would be contrary to the public interest; and
(ii) the findings on any material questions of fact underlying the reasons for the refusal, together with a reference to the sources of information on which those findings are based;
…
29—Internal review
(1) Subject to subsection (5), a person who is aggrieved by a determination made by an agency under any other provision of this Part is entitled to a review of the determination.
(2) An application for review of a determination—
(a)    must be in writing; and
(b)    must be accompanied by such application fee as may be prescribed; and
(c)    must be addressed to the principal officer of the agency; and
(d)    must specify an address in Australia to which notices under this Act should be sent; and
(e)    must be lodged at an office of the agency within 30 days after the day on which notice of the determination was given to the applicant or within such further time as the principal officer of the agency may allow.
(3)    On an application for review under this section the agency may confirm, vary or reverse the determination under review.
(4)    If on a review the agency varies or reverses a determination so that access to a document is to be given (either immediately or subject to deferral), the agency must refund any application fee paid in respect of the review.
(5)    An agency that fails to determine an application made under this section within 14 days after it is received by the agency is, for the purposes of this Act, to be taken to have confirmed the determination in respect of which a review is sought.
(6)    A determination is not subject to review under this section if it is made by or at the direction of the principal officer of the agency or at the direction of a person or body to which the principal officer is responsible.
…
39—External review
(1)    In this section—
…
relevant review authority, in relation to a determination, means—
(a)    if the determination was not made by a person described in paragraph (b)—the Ombudsman;
…
(2)    A person—
(a) who is aggrieved by a determination of an agency following an internal review; or
(b) who is aggrieved by a determination that is not liable to internal review,
may apply to the relevant review authority for a review of the determination.
(3)     Subject to subsection (4), an application under this section must be made—
(a)    where there has been a review of the determination by the agency—within 30 days after notice of the decision on review of the determination is given to the applicant; or
(b)    in any other case—within 30 days after the date of the determination.
(4)    The relevant review authority may, in its discretion, extend the time for making an application under this section.
(5)    In conducting a review under this section, the relevant review authority—
(a) may carry out an investigation into the subject matter of the application (and for the purposes of such an investigation may exercise the same investigative powers as are conferred on the Ombudsman by the Ombudsman Act 1972 in relation to an investigation duly initiated under that Act, including the powers of a commission as defined in the Royal Commissions Act 1917); and
(b) may, if it appears to the relevant review authority that the agency has failed to properly sort or compile documents relevant to the review or to undertake consultations relevant to the review that should have been undertaken by the agency—
(i) require the agency to sort or compile the documents or undertake the consultations; or
(ii) require officers of the agency to attend at a time and place specified by the relevant review authority for the purpose of sorting and compiling the documents or undertaking the consultations; and
(c)     may—
(i) try to effect a settlement between the participants to a review at any time during the review; and
(ii) at the request of the agency, suspend proceedings under this section at any time to allow an opportunity for a settlement to be negotiated.
(6) Section 21 of the Ombudsman Act 1972 does not apply in relation to a review under this section.
(7)    The agency and the applicant must cooperate in the process proposed by the relevant review authority for the purposes of the conduct of a review under this section (including any attempt of the relevant review authority to effect a settlement between the participants), and must do all such things as are reasonably required to expedite the process.
(8)    The relevant review authority may dismiss an application if the relevant review authority considers that the applicant has failed to comply with subsection (7).
(9)    If, in determining an application for a review under this section—
(a) the relevant review authority is advised that the determination of the agency was made on grounds of the public interest; and
(b) the Minister administering this Act makes known to the relevant review authority the Minister's assessment of what the public interest requires in the circumstances of the case subject to the review,
the relevant review authority must, in determining the application, uphold that assessment unless satisfied that there are cogent reasons for not doing so.
(10) A relevant review authority must not make a determination to the effect that access is to be given to a document to which Division 2 of Part 3 applies unless the relevant review authority has taken steps as are reasonably practicable to obtain the views of any interested person as to whether or not the document is an exempt document under a provision of Part 2 of Schedule 1.
(11) On an application under this section, the relevant review authority may (based on the circumstances existing at the time of the review) confirm, vary or reverse the determination the subject of the review.
(12) If, in conducting a review under this section, the relevant review authority is satisfied that a document is an exempt document, the relevant review authority does not have power to make a determination to the effect that access is to be given to the document (but may, if it thinks fit, offer, together with its reasons for its determination, reasons why the agency might give access to the document despite its exempt status).
(13) On making a determination on a review under this section, the relevant review authority must notify each of the following persons of the determination and the reasons for the determination:
(a) the applicant;
(b) the agency;
(c) if—
(i) the determination is to the effect that access is to be given to a document; and
(ii) the relevant review authority—
(A) is aware that the views of an interested person are that the document is an exempt document under a provision of Part 2 of Schedule 1; or
(B) after having taken reasonable steps to obtain the views of an interested person, has been unable to obtain the views of the person, the interested person.
(14) If the relevant review authority considers it to be in the public interest or the interests of an agency to do so, the relevant review authority may publish, in such manner as the relevant review authority thinks fit, the reasons for a determination made on a review under this section.
(15) A relevant review authority should avoid disclosing in its reasons for a determination any matter that the agency claims is exempt matter (whether or not the relevant review authority agrees with that claim).
(16) In publishing reasons for a determination, a relevant review authority may comment on any unreasonable, frivolous or vexatious conduct by the applicant or the agency.
(17) If, after conducting a review under this section, a relevant review authority is of the opinion that there is evidence that a person, being an officer of an agency, has been guilty of a breach of duty or of misconduct in the administration of this Act and that the evidence is, in all the circumstances, of sufficient force to justify it doing so, the relevant review authority may bring the evidence to the notice of—
(a)    if the person is the principal officer of a State Government agency—the responsible Minister; or
(b)    if the person is the principal officer of an agency other than a State Government agency—the agency; or
(c)    if the person is an officer of an agency but not the principal officer of the agency—the principal officer of that agency.
40—Appeal to District Court
(1)    An agency that is aggrieved by a determination made on a review under Division 1 may, with the permission of the District Court, appeal against the determination to the District Court on a question of law.
…
(3)    Proceedings under this section must be commenced by an agency or person within 30 days after notice of the determination to which the proceedings relate is given to the agency or person or, in the case of a person who was not given notice of the determination, within 30 days after the determination.
…

48—Burden of proof
In any proceedings concerning a determination made under this Act by an agency, the burden of establishing that the determination is justified lies on the agency.
Schedule 1—Exempt documents
…
Part 3—Other documents
9—Internal working documents
(1)    A document is an exempt document if it contains matter—
(a) that relates to—
(i)any opinion, advice or recommendation that has been obtained, prepared or recorded; or
(ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and
(b)     the disclosure of which would, on balance, be contrary to the public interest.
(2)    A document is not an exempt document by virtue of this clause if it merely consists of—
(a) matter that appears in an agency's policy document; or
(b) factual or statistical material.
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.
The District Court Act
Sections 42B, 42D, 42E and 42F of the District Court Act 1991 relevantly apply to appeals under s 40 of the FOI Act and provide as follows:
Subdivision 2—Administrative appeals
42B—Application of Subdivision and interpretation
(1) This Subdivision applies in relation to the appellate jurisdiction conferred on the Court by another Act (the special Act) subject to the provisions of the special Act.
(2) In this Subdivision—
decision includes an act (such as the giving or making of a notice, direction, determination, requirement or order) and a failure or refusal to make a decision or act;
original decision-maker, in relation to an appeal, means the person or body whose decision is appealed against, and includes, if that person or body made the decision on an appeal against, or review of, a decision made by some other person or body, that other person or body.
…
42D—Stay of operation of decision appealed against
(1) The making of an appeal against a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2) However, on the making of an appeal, the Court or the original decision-maker may, on application or at its own initiative, make an order staying or varying the operation or implementation of the whole or a part of a decision appealed against pending the determination of the appeal if the Court, or the original decision-maker, is satisfied that it is just and reasonable in the circumstances to make the order.
(3) An order by the Court, or the original decision-maker, under this section—
(a) is subject to such conditions as are specified in the order; and
(b) may be varied or revoked—
(i) in any case—by further order by the Court; or
(ii) if the order was made by the original decision-maker—by further order by the original decision-maker or the Court.
42E—Conduct of appeal
(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
42F—Decision on appeal
The Court may, on an appeal —
(a) affirm the decision appealed against;
(b) rescind the decision and substitute a decision that the Court considers appropriate;
(c) remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
The Appellant

The appellant is a body corporate established under the Legal Practitioners Act 1981 (‘the LP Act’) for the following purposes:
74—Functions of Board
(1) The functions of the Board are as follows:
(a)to investigate suspected unprofessional or unsatisfactory conduct by legal practitioners in accordance with Subdivision 2;
(b) following an investigation, to take action authorised under Subdivision 3 or to lay charges before the Tribunal;
(c)to receive and deal with complaints of overcharging in accordance with Subdivision 4;
(d) to arrange for the conciliation of complaints in accordance with Subdivision 5;
(e)to commence disciplinary proceedings against legal practitioners in the Supreme Court on the recommendation of the Tribunal.
In addition, the Board is vested with powers to investigate and deal with complaints of overcharging and it may conciliate any complaint.
Pursuant to s 75 of the Act the Board may delegate its functions to any person, albeit that it must ultimately determine whether evidence exists of unprofessional or unsatisfactory conduct, whether any misconduct is of a minor nature, whether to recommend the reduction of a practitioner’s fee and/or whether to lay charges before the Legal Practitioners Disciplinary Tribunal (‘the Tribunal’).
Pursuant to s 76 the Board may, upon complaint, of its own motion or upon the direction of the Attorney-General or the Law Society of South Australia, make an investigation into the conduct of a legal practitioner whom the Board has reasonable cause to suspect has been guilty of unprofessional or unsatisfactory conduct. For the purposes of such an investigation, the Board, or a person authorised by it, has certain powers of search and inspection.
Under s 77AB the Board may determine that misconduct is of a minor nature and it may sanction an offending practitioner in a limited number of ways.
Section 82 of the Act provides that a charge laid by the Board against a legal practitioner, other than for minor misconduct, must be heard before the Tribunal. The Tribunal must then conduct its own enquiry into the alleged conduct and deal with it in a judicial manner. It is vested with specific procedural powers and may, upon a finding of guilt, impose significant sanctions upon the practitioner. Rules governing the conduct of its proceedings may be made by the Supreme Court and, indeed, the Tribunal may itself refer its proceedings to that court.
It is not in dispute here that the Board employs staff solicitors who carry out investigations into complaints against practitioners and then advise it whether there is evidence of unprofessional or unsatisfactory conduct meriting Board action. Such investigations include obtaining relevant documents and interviewing potential witnesses and they may take place prior to a decision to take legal proceedings or afterwards.
The Disciplinary Proceedings
The appellant Board is currently prosecuting two charges against the respondent, a former practising solicitor, in Tribunal actions numbered 2 of 2004 and 4 of 2007.
The Board resolutions which led to the original charge laid on 29 March 2004 in Action 2 of 2004 (‘the 2004 proceedings’) appear to have been made on 10 April 2003 and 4 March 2004. Subsequently, there were several further resolutions made up to October 2005 and which resulted in amendments and additions to that charge.
The respondent has challenged the validity of those resolutions by an inter partes summons in Supreme Court Action No. 1377 of 2006 and this has resulted in a stay of the disciplinary proceedings. The Supreme Court proceedings are otherwise yet to be determined.
On 3 July 2007, in Action No. 4 of 2007, a new charge of unprofessional conduct was laid (‘the 2007 proceedings’) before the Tribunal, in essence relying upon the particulars which had been set out in the most recent amendments to the 2004 action.
By Supreme Court Action No. 1698 of 2007, the respondent sought judicial review of the 2007 proceedings, claiming, inter alia, that the decision to bring them was made without notice being given to him or the opportunity to make representations, that the proceedings were ultra vires and that the Board should be restrained from pursuing them.
As with the 2004 proceedings, those proceedings have not yet been determined, nor indeed have the disciplinary proceedings before the Tribunal advanced.
Disciplinary proceedings on both sets of charges therefore remain extant.
The Documents
On 22 and 23 November 2005, and in connection with the 2004 proceedings, the respondent sent four separate emails to the Board requesting, pursuant to the FOI Act, copies of particular documents asserted to be held by it. Those applications are identified as FOI 1 to 4 respectively, the first three being lodged on 22 November and the fourth on 23 November 2005.
Apparently relying on legal advice that it had received ‘over a number of years’, the Board, through one of its solicitors, wrote to the respondent on 25 November 2005 (Exhibit A2 p.8) informing him, inter alia:
(1)that it was not an ‘agency’ within the meaning of s 4 of the FOI Act;
(2)that it was nonetheless ‘mindful of the importance’ of providing the respondent with information relating to allegations raised against him and, consistently with that, that it had provided him with documents of that description;
(3)that it otherwise claimed legal professional privilege over advice obtained from counsel or cost assessors and over reports to it from investigating solicitors.
The respondent did not then seek any internal review of that decision under s 29 of the FOI Act, but it may well be that it was not subject to review by reason of the provisions of s 29(6). At all events, being dissatisfied with the Board response, the respondent wrote to the Ombudsman on 25 November 2005 (Exhibit R3 p.1) seeking an External Review of the Board’s decisions with respect to his four applications under s 39 of the FOI Act.
By letter of 28 November 2005 (Exhibit A2 p.10), the Ombudsman advised the Board of those applications for review and sought from it copies of them, the Board’s determinations, any decisions on internal review and ‘any other correspondence between the Board and Mr Wharf (sic) or any other party relating to the FOI applications’.
The Board responded on 2 December 2005 (Exhibit A2 p.11), attaching the documents requested and saying that, based on an opinion of the Solicitor‑General, it did not consider itself to be an agency for the purposes of the FOI Act.
There was then protracted correspondence and, indeed, a number of meetings between the Board and the Ombudsman, centering upon that particular issue. This led to some further documentation being provided to the respondent, but certain requests remained outstanding.
On 16 August 2006 the Board wrote to the Ombudsman, asserting that particular documents were exempt within the meaning of clauses 9 and 10. That letter was otherwise silent as to the ‘agency’ question.
On 25 August 2006 the Ombudsman wrote to the Board (Exhibit R3 p.17) and, in particular, said:
Given that these reviews have proceeded on a jurisdictional issue for the preceding 9 months, I have not formally issued a Notice of External Review in this matter. Had I done so it would have set out my requirements of you. At this late stage of the proceedings I do not intend to now do so however for your information and assistance (and future guidance) I shall provide you information about the usual requirements of such notices, in order that you are appraised of them at this stage of the proceedings (particularly as such matters may be taken into account by me during the course of this review):
For the purposes of the external review, your detailed report in justification of the determination in accordance with the provisions of section 48 of the Act is requested by the Ombudsman.
1      Be advised that section 48 of the Act provides:
[Quoted]
…
2      Your report to the Ombudsman should include:
2.1The particulars of the steps taken and the search methods employed by your agency to locate the documents sought in the request, including where relevant:
1.     the nature and extent of the searches and enquiries made;
2.the locations in which searches were made and the reason searches were made in those locations;
3.the people to whom enquiries were made and the reason enquiries were made to those particular people;

2.2A list of the documents to which the applicant has been refused access and for which exemption has been claimed (together with a copy of such documents). Such list should identify:
1.     the author and addressee of each document;
2.     the date of the document;
3.     an explanation of the contents of the document.
2.3The particular exemption provision which has been claimed by your agency to refuse access as it relates to the specific matter in each document.
2.4The reasons for refusal of access, including the evidence and any legal authority, upon which your agency may rely in justification of the determination.
2.5Whether it is practicable to give access to a copy of such document/s from which the claimed exempt matter has been deleted and it appears that the applicant would wish to be given access to such a copy, in accordance with the provisions of section 20(4) of the Act. If not, you should provide reasons in your report.
2.6A list of documents to which the applicant has been granted access (together with a copy of such documents).
That letter noted that the Board by then ‘appear(ed) to have conceded jurisdiction’. That assumption proved to be incorrect and the Board advised on 24 October 2006 that it was awaiting the advice of counsel on the issue of agency; that it did not otherwise concede it.
In the face of threats by the Ombudsman to exercise his power to compel production of documents (necessarily based on an assumption of jurisdiction), the Board, by that letter and a further letter of 17 November 2006, then provided him with a list of documents, identifying those which had been provided and those which were ‘subject to claims of legal professional privilege’. It said it would further provide the Ombudsman with copies of the documents over which it ‘claims exemption’.
By correspondence dated 28 February 2007 (Exhibit R3 p.61), the respondent put before the Ombudsman a very lengthy submission going to the question of jurisdiction.
On 18 May 2007 the Ombudsman wrote to the Board (Exhibit R3 p.98) asserting that, save for circumstances in which the Board was exercising judicial or quasi-judicial powers with respect to minor misconduct under s 77AB of the LP Act, it was otherwise performing administrative or executive functions and ought to be regarded as an agency for the purposes of the FOI Act. That letter went on to discuss at some length the legal professional privilege question and it invited each of the appellant and respondent to provide detailed submissions in a form which could be exchanged and in particular (on the part of the appellant) a schedule of documents for which exemptions were claimed in a form that could be provided to the respondent.
Whilst from that time onwards, the Board did not appear to press its contention that it was not an ‘agency’, the correspondence discloses that it was very slow, indeed, in responding to the Ombudsman’s request for a detailed schedule of documents and submissions. The respondent was unhappy about that but the Ombudsman was reluctant to deal with the matter peremptorily because, in the absence of that detail, he was, he said, concerned about fairness to the respondent.
On 25 September 2007 he wrote to the Board requiring its attention to the matter and reminding it of his coercive powers.
On 14 April 2008 he again wrote to the Board, noting the dealings that had taken place between them over the previous months and the Board’s advice to him that it had over a three-month period been negotiating matters with the respondent’s solicitor, but advising that he nonetheless remained bound to make a decision.
It would appear that the Board then provided to the Ombudsman schedules in the form requested, which were on-forwarded to the respondent, and otherwise, on a confidential basis, the copy documents themselves.
On 29 April 2008 the appellant provided the Ombudsman with an amended version of schedules previously provided. It is not evident that this amended document was then provided to the respondent but it appears a copy was later sent with the Ombudsman’s preliminary opinion of 20 June 2008. Even so, and oddly, all of the respondent’s submissions, then and later, were expressed to be based upon ‘annexures and exhibits contained in the material provided to the Ombudsman on 30 September 2006’.
On 2 May 2008 the respondent provided detailed submissions on exemption clauses 9 and 10 generally and these were supplemented by submissions on 4 and 14 May 2008. Pertinently, in his letter of 4 May (Exhibit R3 p.164) the respondent commented:
As you can appreciate, I know nothing of the legal and factual basis asserted by the Board as the basis for its claims to the relevant exemption provisions.
The submissions of 2 May 2008 were prepared without knowing the legal or factual basis for the claims to the relevant exemption provisions.
and went on to request the provision of exactly the sort of material that ordinarily, under s 23 of the FOI Act, would have been provided him. He never did receive that information.
On 20 June 2008 the Ombudsman wrote to both parties in these terms (Exhibit R3 p.191):
These external reviews have a long history which is outlined in previous correspondence and it is not my intention to discuss it in any detail. The purpose of this letter is to express my preliminary views regarding the documents in contention, and to invite final oral submissions, from the Legal Practitioners Conduct Board (‘the Board’) and Mr Wharff before making a final determination. I will convey my views to Mr Wharff by providing him with a copy of this letter.
(my emphasis)
I will not purport to deal with the entirety of that letter because it is lengthy, but mention the following matters:
(1)He identified the three schedules of documents I have discussed.
(2)He noted that the Board was claiming that documents were exempt under clauses 9(1) and 10(1) of Schedule 1 to the FOI Act, albeit that most claims were with respect to clause 10(1).
(3)He touched upon the law relating to legal professional privilege and the decision of the Tribunal in In the Matter of the Legal Practitioners Board and Shaun Bonett dated 24 December 2003. He noted (Exhibit R3 pp 192-93):
The Board has not specifically provided me with submissions on legal professional privilege. However, the privileged nature of a document is quite often self-evident from the face of the document.
(4)He then reviewed the position specification of Board employed solicitors and noted that in a number of instances their roles required them to act in administrative capacities only. At Exhibit R3 p.193:
In my view, the role of the Board’s employed solicitors is multi-faceted. Sometimes they will be acting as legal practitioners (in a solicitor-client relationship with the Board), while at other times they will be acting more in an administrative capacity … the fact that they sometimes act in an administrative capacity does not preclude them from sometimes acting in a legal capacity, where legal professional privilege may attach to their communications. I consider there can be the necessary client-solicitor relationship.
(5)He identified 56 documents with respect to which clause 10(1) exemptions were claimed and placed them into the following three categories, which he separately discussed:
‘A’- communications between the Board’s solicitors and counsel, which appeared to him to have been ‘created for the dominant purpose’ of seeking legal advice or providing it and therefore appeared to be exempt under clause 10(1);
‘B’- agenda items, being reports prepared by Board employed solicitors for its consideration. He considered these largely discussed evidence, but sought to distinguish between parts of them which contained legal advice and parts which he described as ‘mere reporting to the Board on the facts involved in an investigation’.
He concluded that that distinction was not determinative, however, and that he should look, not at the ‘role the solicitors were performing’ when they created them, but ‘what was the dominant purpose for producing the documents as whole documents’. If that purpose did not satisfy the legal professional privilege test then the document would not be exempt and even if the test was satisfied as to certain parts of the document, he concluded that the non-privileged sections of it might be severed under s 20(4) of the FOI Act;
‘C’- these documents were, he considered, subject to a privilege claim by a third party which had not then been waived. They were therefore exempt.
(6)He did not deal with clause 10 exemptions for the remaining documents, but went on to consider the applicability of clause 9 exemptions for 27 of them as follows:
(a)‘D’ and ‘E’
These classes of document need not be discussed here as they are not the subject of this appeal.
(b)‘F’ and ‘G’
He identified 13 documents claimed to be exempt under clause 9 as Internal Working Documents (categories F and G). All of these documents, he considered, met with that general description, but they contained only investigatory material or otherwise severable material and, having regard to the public interest, they should therefore be released.
(7)He attached a schedule to that letter, identifying in it his preliminary findings, and invited further submissions from the parties by 11 July 2008.
For its part, by letter of 14 August 2008 (Exhibit A2 p.308) the Board, having gained an extension of time from him, responded to the Ombudsman’s invitation to put further submissions, asserting, inter alia:
(1)that it did not challenge the Ombudsman’s views with respect to document categories A, C, D and E;
(2)that category B documents attracted legal professional privilege notwithstanding they also and necessarily contained factual reporting. It was ‘inextricably intertwined’ with the legal advice;
(3)with respect to categories F and G, that these documents were either internal working documents, and therefore exempt, or were otherwise protected by legal professional privilege because they ‘relate(d) to information sought by the legal adviser to enable them to advise the client’ and, further, that it was contrary to the public interest for them to be released.
(4)It otherwise stressed the significance in its general operations of any determinations made by the Ombudsman with respect to legal professional privilege exemptions.
It is important to record that as of 3 September 2008 the Ombudsman had not provided the respondent with copies of any of the appellant’s submissions as to privilege; in particular, the respondent had not seen the appellant’s submissions of 14 August 2008. It appeared that he had requested them but his request had been denied by the Ombudsman, who went on to say that he proposed to deal with the matter, anyway, and without requiring any further submissions from the respondent.
On 3 September 2008 the Ombudsman then made the decisions which are the subject of this appeal (Exhibit R3 p.241). His determination is a lengthy document and repeats many of the observations contained in his preliminary opinion of 20 June 2008. I will touch upon its salient features:
(1)His decision was based upon what might be termed ‘the third schedule’ of documents provided by the Board on 29 April 2008 – the document is, as I have noted, not mentioned in the respondent’s submissions.
(2)He noted that the Board did not dispute the correctness of his preliminary views relating to documents in categories A, C, D and E but that it otherwise, by its submission of 14 August 2008, challenged his views with respect to documents in categories B, F and G.
(3)He noted as follows (Exhibit R3 p.242):
Mr Wharff replied that there is not much more he can usefully say to assist me in the matter without knowing more about the legal and factual basis asserted by the Board in support of any claim to exemption. He has asked for the opportunity, by way of procedural fairness, to respond to the Board’s submissions prior to me making my determination. For reasons which will soon become evident, I do not consider it necessary to accede to the request. I have however incorporated the Boards’ recent submissions into my determination.
(4)He noted that the 56 documents identified in his preliminary opinion had risen to 69 documents over the five categories, as the Board was by then arguing alternative exemption claims with respect to some documents in categories F and G.
(5)As to category B documents, he repeated his conclusions expressed in the preliminary opinion but then addressed the Board’s subsequent submissions of 14 August 2008.
He disagreed with the submission that factual reporting and legal analysis in employee solicitor reports to the Board were inextricably intertwined with legal advice. He doubted there was much legal advice in many of the documents, anyway. He concluded that, in his opinion, there were two purposes behind the production of those documents, namely, the provision of legal advice to the Board and the reporting to the Board on the facts involved in an investigation (Exhibit R3 p.248):
The Board cannot exercise its statutory decision making function unless it knows the facts, and therefore I am not satisfied that the provision of legal advice is the dominant purpose of the production of the agenda items.
(his emphasis)
He thus concluded that clause 10 exemptions were not available with respect to most agenda items, save and except for those containing legal advice provided to the Board by counsel. Those parts he considered could be severed from the balance of the document, which ought then be disclosed.
Accordingly, he purported to sever from disclosure, those parts of agenda items which he considered were exempted.
He accepted that at least some of the agenda items were produced when litigation was either on foot or reasonably anticipated, but then observed:
The dominant purpose test aside, it is my view that it cannot be said that these particular documents could be used in or aid the conduct of litigation. In my preliminary view I invited submissions on the issue and received none. I do not propose to consider the matter further.
(6)With respect to categories F and G and clause 10 exemptions, he was of the opinion that they were not ‘produced by the solicitors when they were acting as legal advisors to the Board’ but rather (Exhibit R3 pp 249-50):
… produced when the solicitors were investigating complaints, and therefore acting in an administrative capacity … the solicitors were communicating in the course of their roles as investigating officers, and therefore these communications are not privileged.
He went on to say that:
… (T)he roles of the solicitors are multi-faceted and a distinction needs to be drawn between the solicitors’ functions as legal advisors and their functions when they are not acting as legal advisors. I do not consider that the dominant purpose for the production of these documents was to enable the Board’s legal advisors to advise the Board.
He commented (Exhibit R3 pp 250-51):
I add that I find it regrettable that the Board, which has consistently taken a firm stance regarding its privilege claims over certain categories of documents, has at no time provided submissions of any substance to support its claims. Pursuant to s 48 of the FOI Act, the onus is on an agency to justify its exemption claims; and in this matter the Board appears to have made scant effort to do so. I consider the Board’s submissions in many respects vague and assertive without any clear reasoning behind its claims. I am disappointed with the cooperation, or lack thereof, the Board has shown my office in these reviews.
(7)He then went on to consider clause 9 exemption claims, with particular respect to categories F and G.
Concerning category F documents, he noted that they merely discussed the results or prospects of investigation and evidence obtained and contained factual material that could be severed, anyway, and he did not see how it would be contrary to the public interest to release the documents, particularly as the Board had done no more than merely assert that it would be contrary to the public interest to release them.
With respect to category G documents, his conclusion was much the same. He did not consider they fell within the exemption clause 9, nor that it was contrary to the public interest to release them.
Incidental Issues

It is appropriate, here, to deal with a number of issues that arose during the appeal.
(1)In Application 3, the respondent had sought copies of:
(a)communications between the Board and any other person in relation to or otherwise relevant to the matters alleged in paragraphs 5 and 6 of the charge;
(b)any information relevant to the matters alleged in paragraphs 5 and 6 of the charge (and not already provided under (a));
(c)the evidence available to the Board in support of the matters alleged in paragraphs 5 and 6 of the charge (and not already provided under (a) and (b));
(d)the usual details of any witness that may be called upon to give evidence to the Board and any statement of their evidence (and not already provided under (a), (b) and (c)).
In Application 4 he had sought:
(a)any opinion expressed by personnel of the Legal Practitioners Conduct Board in the course of or at the conclusion of an investigation of a complaint alleging unprofessional or unsatisfactory conduct on his part;
(b)any document of the Legal Practitioners Conduct Board in respect of whether evidence existed of unprofessional or unsatisfactory conduct on his part;
(c)any determination of the Legal Practitioners Conduct Board in respect of whether evidence existed of unprofessional or unsatisfactory conduct on his part;
(d)any determination of the Board in respect of whether to lay charges (against him) before the Legal Practitioners Disciplinary Tribunal.
In response to Application 3, by letter of 16 August 2006 (Exhibit R3 p.14) the appellant had responded simply that all relevant documentation had been disclosed. In response to Application 4, by that same letter the appellant had asserted that these were exempt documents under clause 9 or clause 10 of Schedule 1.
What then occurred was that the respondent withdrew Applications 2 and 4 but maintained Applications 1 and 3. There were, however, documents that fell within both Applications 3 and 4 and which were of a kind over which (by its original response to Application 4) the appellant was claiming exemptions.
Further, in its document schedules, the appellant had squarely identified each of the documents it claimed to be exempted.
The Ombudsman had in consequence adopted the sensible course of placing documents into descriptive categories and dealing with them in that way (categories A to F) rather than identifying them by reference to each of the numbered respondent applications.
The respondent faintly suggested that by its answer with respect to Application 3, the appellant had not claimed exemptions with respect to certain documents identified in that application (albeit that some of them also fell within Application 4 and had in that context been the subject of such claims) and that, accordingly, it should not now be able to make such a claim.
I was not satisfied there was any merit in that contention. In the first place, the appellant had listed each document in its schedule and indicated whether and how it claimed an exemption for each. The Ombudsman had then elected to place each one into a grouping (a process which was unchallenged by the appellant) and to discuss each grouping separately, but to then rule on each document for which an exemption was claimed.
I am thus satisfied the appellant identified its claim with respect to each of the contested documents and that the Ombudsman ruled on each one.
This appeal is against his rulings.
(2)The Ombudsman, at various times, commented adversely on the failure of the Board to respond either expeditiously or thoroughly to his various requests for information and submissions and, in particular, observed that its 14 August submissions were ‘in many respects vague and assertive without any clear reasoning behind’ them (Exhibit R3 p.251).
Similar criticism was voiced by the respondent, albeit that he had not had access to that documentation.
The failure of the Board to respond promptly in greater detail to the Ombudsman’s requests was, indeed, regrettable but, except insofar as it might touch upon its satisfaction of the burden of proof, I am not persuaded that it should go to the merits of the appeal. It might have been relevant to the exercise of discretion with respect to extension of time, but the appellant has previously obtained that.
(3)The respondent contended that the Board should not be able to limit its submission before the Ombudsman and then seek to expand it before this court.
Whilst the Board can and should be criticised for not seeking to address the Ombudsman in a more comprehensive way with respect to its exemption claims, the reality is that the Ombudsman’s role is not a judicial one, nor are reviews to be conducted by him in an adversarial way.
Upon review, the function he discharges is essentially an inquisitorial one, as sections 13 and 18 of the Ombudsman Act 1972 reveal. His powers under s 39(5) of the FOI Act authorise him to carry out investigations, pursue requests for information and, save for the circumstances envisaged by s 39(7) and (8) and which were not established here, determine the application for review, having regard to the provisions of the FOI Act.
It appears to me that the fact that a party to such a review has not addressed a particular legal aspect of it, either extensively or at all, does not absolve the Ombudsman from properly considering and applying the law and the provisions of the FOI and the Ombudsman Acts to his determination, nor am I persuaded that either party on appeal is prevented from expanding upon arguments signalled or foreshadowed, if not enlarged upon, before the Ombudsman.
(4)I am mindful of the provisions of s 42E of the District Court Act 1991 which apply to this appeal and which enable the Court, if it thinks fit, to allow further evidence or material to be presented to it and that, further, it is not bound by the rules of evidence but may inform itself as it thinks fit.
Here, the documentation is, indeed, voluminous, but neither party has taken objection to the contents of the affidavits tendered by the other. In a number of respects that material amounts to ‘further evidence or material’. I have therefore received it and will take account of it in addition to what was before the Ombudsman.
(5)As an aside, it is worth noting that the identities of persons, other than Mr Talbot, who have made complaints against the respondent, are disclosed in certain of the contested documents and the Ombudsman has ruled that disclosing their names in those documents is not within the scope of his determination. Neither party disputes that.
Permission to Appeal
A preliminary issue at the hearing was the requirement of s 40(1) of the FOI Act that the appellant first gain permission to appeal against the determination in question. The appellant so applied and the respondent opposed the grant, so it is appropriate that that application be dealt with first.
The appellant submitted that permission ought to be granted on grounds:
·that the issues raised were significant legal ones because this was the first appeal to the court from any decision made under the FOI Act with respect to clause 9 and 10 exemptions, insofar as they applied to Board documentation;
·that questions of general importance arose because any court determination would have significant implications for the Board’s procedures in the investigation and conduct of disciplinary proceedings against legal practitioners generally;
·that the matter was of general importance to the respondent because he had made a further application under the Act which was the subject of delayed consideration by the Ombudsman, pending the outcome of this matter.
The respondent contended that no errors of law had been demonstrated but, even so, appeared to acknowledge in his submissions that the appeal did raise issues of importance for him and, as well, with respect to government policy concerning freedom of information. Having said that, he pointed to the fact that the Ombudsman was no longer awaiting the court’s decision with respect to other applications but was proceeding with his external review. He went on to detail the extent of his interest in access to the subject documents and the general public interest in the provision of such access.
He complained in this context about his lack of access to correspondence and dealings between the appellant and the Ombudsman and submitted that, if there was to be a grant of permission, it should be upon the condition that it was limited to arguments expressly raised by the appellant in the course of the Ombudsman’s review.
I am persuaded that permission to appeal on all the grounds advanced ought to be granted, and for these reasons:
(1)I am satisfied that the extent of practitioner access to Board documentation here raises important legal questions, in particular but without limiting them:
·    What internal documents ordinarily brought into existence by or on behalf of the Board in disciplinary proceedings are in the course of or for the purpose of its decision-making functions (clause 9(a)).
·    What are the public interest issues which might potentially exempt such documents from disclosure under clause 9(b).
·    Whether the clause 10 exemption test is the same test as would be applied at common law in a claim for legal professional privilege.
The appellant has urged that the Ombudsman erred in law in his approach to all of these questions and it appears to me that their resolution is a matter of particular importance to this application.
(2)I am further satisfied these questions are of general importance in terms of the Board’s fulfilment of its statutory and public functions.
(3)The respondent himself appeared to recognise some of these matters.
(4)I am far from persuaded, for reasons I will touch upon, that no errors of law in the Ombudsman’s determinations have been demonstrated.
(5)As to the respondent’s contention that any permission should be limited in the way he contended, he said in particular:
(a)that unfairness had arisen from the failure of the appellant to fully cooperate in the external review process by addressing detailed submissions to the Ombudsman;
(b)that there would be undesirable public consequences if parties were permitted to adopt tactics of that kind;
(c)that he had not been provided with all relevant documents, nor afforded any real opportunity to specifically address the appellant’s claims.
As to that first matter, I am obliged to say that I was not satisfied on what was before me that the appellant’s dealings with the Ombudsman amounted to a lack of cooperation, at least of the kind or level envisaged in s 39(7) and (8) of the FOI Act. It was certainly dilatory and plainly unfamiliar with its responsibilities under the FOI Act, but I am prepared to accept that, at least until May 2007, it believed upon counsel’s advice that it was not an ‘agency’. Had its conduct amounted to a lack of cooperation in the fullest sense, the Ombudsman might properly have exercised his powers under s 39(7) and (8) of the FOI Act and he did not do that.
As to the second matter, I do not consider that permitting the appellant to expand upon matters raised in a broad sense before the Ombudsman would likely encourage similar conduct by other parties. I cannot see that there is any tactical or other advantage in a party limiting the submissions it wishes to put before the Ombudsman. I would have thought that any party would be interested from the outset in achieving a favourable determination from the Ombudsman. There does not appear to me to be any advantage in reserving any such submission to an appeal hearing.
Otherwise, as I have commented, both parties adduced additional evidence and material and it is a frequent feature of the appeal process that contentious matters, including legal questions, are dealt with in greater depth than at first instance.
I turn then to the third matter, the respondent’s complaint about limited access to documents. He said that there was correspondence and there were occasions of contact between the appellant and the Ombudsman from which he was totally excluded.
That complaint must be viewed in the context of the Ombudsman’s responsibilities:
(a)in the course of investigating a complaint, he may be obliged to deal individually and confidentially with both the applicant and the agency. He will often access and inspect documents which should, at least at that stage, be kept confidential from the applicant;
(b)in this instance, much of the early dealing between the Ombudsman and the appellant here seems to have revolved around the dispute over the ‘jurisdictional’ question, namely, whether the appellant was an agency within the meaning of the FOI Act. It appears that this was the first occasion when that issue had been ventilated with the Board and I am satisfied that the Ombudsman was entitled to make his own enquiries of and contact the appellant without, at first instance at least, being obliged to disclose their content to the respondent. Ultimately, that became a non-issue;
(c)in the nature of such applications, it will inevitably happen that the agency will not only provide the Ombudsman with disputed documents, but may need to engage in some separate communication with him to explain their provenance. I cannot see that that level of secrecy or confidentiality is offensive; indeed, in many cases its provision might be essential to the Ombudsman’s fulfilment of his duty.
So much was exemplified by what happened in this instance. Indeed, both the appellant and the respondent provided documents to the Ombudsman on a confidential basis and the respondent himself continues to maintain a claim to confidentiality with respect to certain parts of his own materials.
Having said that, the respondent specifically asserts that he has never been fully informed of the legal and factual basis of the exemptions claimed by the appellant. There is merit in that claim, albeit that the circumstances disclose that it came about as a result of an unfortunate series of events, namely:
(a)the initial dispute as to whether the Board was an ‘agency’ and the delays consequent upon that and up to the time of the determination of 18 May 2007;
(b)the consequential failure of the appellant to comply with s 23 of the FOI Act, a failure which was never redressed prior to the Ombudsman’s review;
(c)the appellant’s failure to comply with the Ombudsman’s request of 25 August 2006 that it provide detail of a kind required by s 23 – again to be seen in the context of the Ombudsman’s concession that he was not then formally conducting an external review (and, impliedly, not acting coercively) and of the appellant’s maintenance of the claim until May 2007 that it was not an agency;
(d)the failure of the Ombudsman to ultimately (that is, after May 2007) insist upon either formal compliance by the appellant with s 23 of the FOI Act or otherwise the provision of equivalent detail and his apparent failure to furnish the respondent with the appellant’s submissions of 14 August 2008.
The unhappy result of all these matters was that the respondent never did receive a formal notice of determination under s 23(2), nor any equivalent information. He was never advised in any level of detail about the exemption claimed for each document, in particular any ‘findings on any material questions of fact underlying the reasons for the refusal’ (if, indeed, any were to be asserted) and ‘the reasons why disclosure of the (relevant) document would be contrary to the public interest’ (s 23(2) of the FOI Act). Further, he did not see the appellant’s submissions. The Ombudsman says they were identified in his determination, but that is correct only in a very general sense.
Separately, the respondent complained about the lack of particularisation even as of the time of the appeal hearing, and there was merit in that. In consequence, he was given some time to further consider the appellant’s written outline of submissions, but even so, he remained without s 23 particulars and a copy of the appellant’s submissions, and the extent of this disadvantage was not fully appreciated by me until I had the opportunity of reading the voluminous materials tendered.
Against that background, I find myself satisfied that the respondent has never had a fair opportunity to consider and respond to each of the appellant’s separate exemption claims because they have never been particularised for him. That disadvantage goes more to the merits of the appeal, however, and not to the question of permission to appeal, which I now grant.
The Appeal
I turn then to the appeal itself.
I have dwelt at length upon the circumstances which resulted in the respondent never having received s 23 particulars, nor their equivalent, nor the appellant’s final submissions. In consequence, he was unable to direct his mind to the specifics of any particular exemption claim, nor to call upon the Board to consider its duty under s 20(4) of the Act to give access to parts of documents from which exempt matters had been deleted, nor was he ever afforded the opportunity to have an internal review of the appellant’s decision (if, indeed, one was available to him).
The conduct of the appellant was not deliberately directed towards that result, but the fact remains that, in consequence of it, he has suffered significant prejudice in responding to the appellant’s claims.
From one perspective, that should not matter here as he received the benefit of favourable findings by the Ombudsman, but on what is before me, and even allowing that the appellant carried the burden of proof and advanced limited submissions to the Ombudsman, I am not satisfied about the correctness of certain of the Ombudsman’s findings and any reversal of them would have significant implications for the respondent’s position.
The Ombudsman remained obliged to reach his determinations by correctly applying the law and, for reasons which I will discuss, I am not persuaded he did that.
An error of law in decision-making can occur in a number of ways and they were discussed in Repatriation Commission v Hill[1]:
If a tribunal falls into an error of law "which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers": see Craig v State of South Australia … (1995) 184 CLR 163 at 179.
(See also Southern Adelaide Health Service Inc v C & Ors; Case Stated on Acquittal (No 1 of 2006)[2] and City of Unley v Warnecke[3].)
[1] [2002] FCAFC 192 at [59]
[2] (2007) 97 SASR 556
[3] [2004] SADC 48
Here, were I to make formal findings that the Ombudsman erred in law, they would carry the potential of perpetuating the disadvantage the respondent has already suffered, namely, the absence of a fair opportunity to deal with each individual ground of objection by the Board in the way the FOI Act contemplates. Further, I am mindful of the fact that there remain further outstanding reviews before the Ombudsman relating to other requests made by the respondent.
Having regard to my duty on this appeal to ‘act according to equity, good conscience and the substantial merits of the case’, I have concluded that the order I should make on this appeal is to remit to the Ombudsman for further consideration, each and every of the determinations he made with respect to documents in categories B, F and G, but with directions and specific recommendations.
Directions
The directions I make are:
(1)that the appellant do within 28 days of today serve upon the respondent and the Ombudsman a formal notice of determination dealing with each document sought to be exempted and in a form that complies fully with s 23 of the FOI Act and which, either then or by way of later reply, takes account of its duties upon request under s 20(4) of the FOI Act, along with such other submissions as it may deem appropriate. Further, that document should, for reasons I will touch upon, identify the capacity in which any Board employee responsible for creating a particular document (or any part of it said to be privileged on the ground of legal professional privilege) is asserted to have been acting at the time it was brought into existence;
(2)that the respondent do within 28 days of service upon him of the appellant’s notice and submissions, file such answering submissions and materials as he may be advised. I am mindful here of the fact that he has already filed very lengthy and general submissions. They need not be repeated and can be simply melded with such other detailed submissions as he may be advised;
(3)that the appellant do within 14 days of service upon it of the respondent’s further submissions, file any such reply as it may be advised.
Recommendations

I then make recommendations under s 42F(c) of the District Court Act as follows:
(1)There has been extensive discussion before me, and indeed in the respondent’s submissions, of the law relating to the question of legal professional privilege, both generally and insofar as the latter applies to communications between solicitor employees of the Board and the Board itself.
The following observations are pertinent:
(a)The law relating to legal professional privilege is relatively settled. In Grant v Downs[4] the majority of the court held that legal professional privilege was confined to documents brought into existence for the sole purpose of obtaining legal advice or for use in legal proceedings.
[4] (1976) 135 CLR 674
Barwick CJ took a broader view and, whilst supporting the approach that the purpose of the creation of a document was the key issue, he considered its contents would attain privilege simply if that purpose was the dominant one.
Ultimately, the dominant purpose test has survived and in Esso Australia Resources v FCT[5]the court held (at 73):
[5] (1999) 201 CLR 49
As a practical matter, the choice presently confronting this Court is between sole purpose and dominant purpose. The dominant purpose test should be preferred. It strikes a just balance, it suffices to rule out claims of the kind considered in Grant v Downs and Waugh, and it brings the common law of Australia into conformity with other common law jurisdictions.
(b)The separate question as to whether privilege can attach to communications made between employee solicitors and their employers was considered in Waterford v The Commonwealth[6], albeit that the solicitors there were employed by the Commonwealth government. The court adopted Lord Denning’s remarks in Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No 2)[7] where he said:
[6] (1987) 163 CLR 54
[7] [1972] QB 102
The law relating to discovery was developed by the Chancery Courts in the first half of the 19th century. At that time nearly all legal advisers were in independent practice on their own account. Nowadays it is very different. Many barristers and solicitors are employed as legal advisers, whole time, by a single employer. Sometimes the employer is a great commercial concern. At other times it is a government department or a local authority. It may even be the government itself, like the Treasury Solicitor and his staff. In every case these legal advisers do legal work for their employer and for no one else. They are paid, not by fees for each piece of work, but by a fixed annual salary. They are, no doubt, servants or agents of the employer ... . They are regarded by the law as in every respect in the same position as those who practise on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and of etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges.
It noted that such a legal adviser may on occasions perform work that would not attract privilege and went on to observe (at 62):
To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment.
(c)Subsequent authorities have made it clear that that same measure of privilege may attach to communications involving solicitors employed by private corporations (Ritz Hotel v Charles of the Ritz[8], Deputy Federal Commissioner of Taxation v Citibank Ltd[9] and Australian Hospital Care Pty Ltd & Anor v Duggan & Ors (No. 2)[10]. In the latter case Gillard J commented:
[8] (1987) 14 NSWLR 100
[9] (1988) 88 ATC 4941
[10] [1999] VSC 131
In my opinion, legal professional privilege applies in respect of a confidential communication between a private sector employer and its employee legal practitioner if it is established that the communication -
(i)      arises as a result of the employer consulting the employee in a      professional capacity;
(ii)     is in relation to a professional matter;
(iii)    is made in confidence;
(iv)    arises from the relationship lawyer and client … and
(v)     satisfies one of the tests laid down in Grant v. Downes (sic).
But in addition to these five elements there appears to be a sixth requirement and that is the element of independence. It is likely this is an aspect of the first element, namely, professional capacity but it is convenient to consider it as a separate element.
(d)Helpfully, in Trade Practices Commission v Sterling[11] Lockhart J observed (at 245-46):
[11] (1979) 36 FLR 244
Legal professional privilege extends to various classes of documents including the following:
(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them …
(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used …
(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance …
(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf …
(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence …
(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action …
(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.
(e)A distinction has always been recognised between what is termed ‘advice privilege’ and litigation privilege, the latter attaching to legal advice in relation to existing or anticipated litigation. It is trite to say that the latter category is less contentious.
(f)It is plain that legal advice is not usually sought or provided in a vacuum and it is well recognised that its provision will frequently involve the discussion of facts and evidence. The presence of such information and communication may not of itself defeat a claim for privilege, albeit that it will often be relevant to any consideration of the dominant purpose of the communication. This was discussed in Workcover Authority (NSW), (General Manager) v Law Society of NSW[12], where the court per McColl JA observed (at [77]):
[12] (2006) 65 NSWLR 502
The scope of the proposition that privilege is not lost if a communication

from a lawyer containing legal advice also contains extraneous matter was

considered in Balabel v Air India [1988] Ch 317. That case concerned the

question whether legal advice privilege extended only to communications

seeking or conveying legal advice, or to all that passes between solicitor and

client on matters within the ordinary business of a solicitor. Taylor LJ (with

whom the Master of the Rolls, Lord Donaldson MR and Parker LJ agreed) said (at 330) that:
"... [T]he purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence...the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly ... [L]egal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context."
And noted (at [83]-[84]):
In DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151, Allsop J

undertook an exhaustive review of authorities concerned with the scope of

legal advice privilege in the context of documents which contained both legal advice and extraneous matter. After referring approvingly to Taylor LJ's statement in Balabel (at 330), he said (at 165 [45]):
"[45] ... What legal advice is, however, goes beyond formal advice as to the law. This recognition does not see the privilege extend to pure commercial advice. In any given circumstance, however, it may be impossible to disentangle the lawyer's views of the legal framework from other reasons that all go to make up the 'advice as to what should prudently and sensibly be done in the relevant legal framework'..."
Allsop J observed (at 163 [31]) that "the privilege...will not be allowed to

be undermined by an overly narrow or technical approach to questions

involved, such as the identification of the relevant advice in question".

Nevertheless, he cautioned, that the importance of the privilege "does not ...

provide a foundation for extending the protection beyond its proper bounds".
(my emphasis)
It is not, therefore, appropriate to look at challenged factual material from the standpoints that (a) some part of it is not legal advice or (b) it has been ascertained by the author or by others in circumstances which did not themselves attract privilege or (c) it contains material put there for a separate purpose. If a court is satisfied that the dominant purpose of a communication otherwise meets the required test then, ordinarily, the entire document will enjoy privilege and no question of severability should arise.
(2)Whilst I have discussed the common law relating to legal professional privilege, I should then say I am not satisfied that the exemption test applicable under clause 10(1) of the FOI Act is equivalent to or co‑extensive with it.
Had the legislators intended such a result, they might simply have said so. Indeed, the Commonwealth Freedom of Information Act 1993 expressly provides (s 42(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.
But here, clause 10 provides that a document is exempt if ‘it contains matter that would be         privileged’ on the ground of legal professional privilege. That phrase appears to me to introduce a concept that common law authorities have not squarely dealt with. They focus upon the question of whether a whole document is privileged, not on whether ‘matter’ contained within it might be.
There is support for that distinction to be found in s 20(4) of the FOI Act, which obliges an agency, upon request, to provide an applicant with access to non-exempt matters contained within a document, if it is practicable to do so. The plain implication of that subsection is that a document can prima facie be exempt if it ‘contains’ privileged material, but that the decision-maker must, on request, consider severance of ‘non-exempted’ parts of it. Such an obligation cannot sit with any notion of common law privilege.
It appears to me that the legislature has here (in clause 10) embraced a form of exemption that is considerably wider than that which would apply at common law. It looks not at the dominant purpose of the document itself but, rather, whether there is matter contained within it that would be privileged.
It could be said that that argument is necessarily circuitous because it is difficult to apply the dominant-purpose-of-a-whole-document test to ‘matter’ contained within a document.
The nearest assistance I have gained to resolving that conundrum is found in the case of Brookfield Multiplex Ltd v International Litigation Funding Partners PL (No 2)[13], where Finkelstein J (albeit speaking about advice privilege) at [3] identified the bare criteria that will qualify a communication for privilege, namely, that it must be:
[13] [2009] FCA 449
(a) confidential; (b) of a professional nature; and (c) made with the intention of obtaining or giving legal advice … The advice given or sought need not be confined to matters of legal principle. It may include advice as to what should or should not be done in a “relevant legal context” … is not confined to telling the client the law …
He went on to point to criteria which distinguished litigation privilege, noting that:
(a)in most common law jurisdictions, advice privilege, unlike litigation privilege, does not extend to communications with third parties;
(b)At [7]:
Another difference is that litigation privilege provides protection to a wider range of communications. It applies to communications other than those made for the purpose of giving or obtaining legal advice. One instance is evidence gathered for the purpose of litigation. On the other hand, the scope of litigation privilege is narrower in that it applies only when litigation is in existence or in reasonable prospect.
(my emphasis)
On a careful consideration of that case and the authorities, it appears to me to be a legitimate exercise, in considering a clause 10 exemption claim, to examine a document in order to see whether particular material contained within it is (1) confidential, (2) of a professional nature and (3) is created either for obtaining or giving legal advice or for use in or in aid of existing or anticipated litigation. It appears to me that if a discrete part of a document can be so characterised, then the whole document can be said to ‘contain’ privileged material and a clause 10 exemption ought be available, notwithstanding that the dominant purpose of its creation as a whole document may not otherwise satisfy the common law test.
There is no doubt that such an interpretation of clause 10 necessarily broadens the scope of documentation which would be exempted from disclosure, but that is, as I read it, the intention of the legislation.
In the particular circumstances of proceedings before the Legal Practitioners Disciplinary Tribunal, I would be surprised if such a result would ultimately cause any hardship to a defendant, anyway, because, having regard to the practice of the Board and the remarks of the Tribunal in the case of Bonett, with which I respectfully agree, it would seem most likely that a respondent would, either through prosecution disclosure or full discovery, ultimately gain access to documentation that did not enjoy the common law protection of legal professional privilege.
Here, I think the Ombudsman took an approach to clause 10(1) exemption that was in error.
In part B, when discussing agenda items, he seemed to recognise the word ‘contain’ had some work to do (Exhibit R3 p.246):
The relevant question is what parts of the documents, if any, attract legal professional privilege and are thereby exempt from release to Mr Wharff.
But he then concluded:
My view is that I should not look to what role the solicitors were performing when creating separate parts of the agenda items, rather I need to examine what was the dominant purpose for producing the documents as whole documents.
He accepted that some parts of agenda items contained legal advice, but even so that did not identify the dominant purpose of any such document; indeed, he thought that they were produced for other reasons.
I think he erred in approaching his task in that way. Once he found certain parts of an agenda did contain legal advice, the basis for a clause 10(1) exemption necessarily emerged and he erred in then proceeding to determine the matter by considering the dominant purpose of the whole document.
Further, he did not properly direct his mind as to whether such material amounted to ‘evidence gathered for the purpose of litigation’ (Brookfield, supra).
(3)If I am wrong in that conclusion and the limits of exemption in clause 10(1) are considered to be co-extensive with the common law concept of legal professional privilege, I would still find:
(a)that he wrongly failed to consider the appellant’s argument that some factual matters in the agenda were necessarily intertwined with legal advice and should therefore also be part of any privilege claim. I have already cited authority on that question. It must always be a contextual matter, but in every instance where advice is sought or given, consideration also needs to be given to the question of whether facts are advanced or discussed in support of that purpose or, indeed, whether they reveal it. If they do, then those facts, too, ought be privileged;
(b)that he misapplied the law and applied too narrow a test in approaching litigation privilege on the footing that ‘the dominant purpose test aside’, it could not be said that the documents in question could be ‘used in or aid the conduct of litigation’.He did not expand upon that statement, but I have serious reservations about what he meant.
The dominant purpose test cannot be put aside and once it is shown that the dominant purpose of production of a document is for ‘using it or its contents in order to … conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect …’ (Grant v Downs, supra, at 677), that is the end of the matter (the emphasis is mine);
(c)that he was not at liberty to apply s 20(4) of the FOI Act as there was not before him any appeal on any Board exercise of that power.
(4)As to category F and G documents and clause 10 exemption, the Ombudsman formed the view that they were produced by employed solicitors simply as part of their investigatory or administrative functions and not whilst acting as legal advisers to the Board.
Whilst the evidence appears to disclose that solicitors employed by the Board at times carried out investigatory as well as legal advisory functions, it is important to distinguish between materials which might be gathered by employed solicitors in the course of investigating a complaint and which would not ordinarily gain protection, and references to or repetition of those materials or factual matters in any separate document or part of a document which might otherwise be an exempt document.
In the former case, there could be no basis for an exemption claim but in the latter case there might well be because they may be contained or inextricably bound up within a request for or the provision of legal advice.
Here, I am not satisfied that the Ombudsman had properly directed his mind to that distinction.
This conclusion may have limited practical significance if the primary documents are not themselves protected, but care still needs to be exercised as to whether any such documents fall within the fourth category of documents identified in Trade Practices Commission v Sterling (supra).
It is not enough to conclude that because the documents were prepared by legal advisers acting as ‘officers’, that they did not thereby contain privileged material – the full reference is to ‘Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser …’ (my emphasis).
The note may thus be prepared administratively but contain material that remains protected by privilege.
The Ombudsman, after recognising this distinction and the possibility that a staff solicitor may gather information administratively and then prepare his own advice, then blandly rejected the possibility that a document in these terms might fall within the fourth category of documents described by Lockhart J in Sterling’s case.
Further, he mistakenly assumed that the appellant was not relying on litigation privilege with respect to these documents and did not further entertain that question.
Accepting, as I do, the correctness of the Tribunal decision in Bonett, it became necessary for the decision-maker and then the Ombudsman to consider, as to each disputed document, the capacity in which the relevant Board employee was acting when creating any part of a disputed document, so as to determine whether the whole document contained material protected by legal professional privilege.
In that context, it would seem:
(a)that the Board previously advanced scant material in connection with this and the Ombudsman was, in consequence, hampered in his consideration of those matters;
(b)when the matter is further considered and assuming the Board has properly provided s 23 material, the Ombudsman will need to be sensitive to that capacity in reaching his determination.
Overall, concerning clause 10 exemptions, I consider he did not direct himself correctly in the above respects.
(5)As to clause 9 exemptions:
(a)In the case of F and G documents, the Ombudsman noted that the appellant had merely asserted that their release was contrary to public interest. He disagreed with that and went on (Exhibit R3 p.253):
I am not persuaded it would be, on balance, contrary to the public interest to release the documents to Mr Wharff.
I have previously commented upon the failure of the appellant to advance any material in support of its assertions that release of internal working documents was contrary to the public interest and this is, in part, a result of the absence of a proper notice of determination under s 23(2)(f)(i)(B).
I am also mindful of the provisions of s 48, which cast upon the Board the onus of justifying its exemption claims. Its bald assertion that release would be contrary to the public interest would not seem to advance that position to any significant degree.
Having said that, the authorities recognise that the ascertainment of public interest is, from time to time, self-evident, notorious or, indeed, a matter of which a court might take judicial notice.
It does not appear to me, however, that the Ombudsman was properly discharging his obligation to externally review the matter simply by dismissing the appellant’s claim as a ‘mere assertion’, with which he disagreed. He did go on to say that he was not persuaded, on balance, that it was contrary to the public interest but he did not identify which, if any, matters he brought into that balance. Notwithstanding the failure of the appellant to enlarge upon its assertion, it appears to me that the Ombudsman ought to have directed his own mind to questions of public interest and that there was material before him which may have enabled him to do that. It is not, however, obvious that he did.
At all events, in view of the orders I am making in this matter, it appears to me that that issue will be more appropriately ventilated before him, and he will then have a proper opportunity to conduct that balancing exercise.
(b)Generally concerning category F and G documents, it appears to me that the Ombudsman failed to properly interpret clause 9(1)(a) as, again, he did not seem to give any or proper weight to the question of whether a particular document ‘contained’ exempted material within the meaning of clause 9(1)(a). Further to that, he wrongly sought to apply s 20(4) when no appeal on any such determination was before him.
(6)In relation to category B documents numbered 80 to 83 inclusive, the appellant correctly contended that the Ombudsman’s determinations were ultra vires as these documents had never been the subject of any of the original document requests and, indeed, were not even in existence then.   The obvious course now is for the respondent to formally request them, for the appellant to respond to that request in a proper way and for the respondent, if so advised, to refer any refusal to the further Ombudsman’s review that I have directed.
Summary

In summary, I have concluded that the Ombudsman erred in law in a number of significant respects. Ordinarily, I would see my responsibility as one of reviewing the relevant documents and applying to a consideration of each, the legal principles I have espoused. Such a process carries the grave risk here, however, that the respondent will be disadvantaged because of the unfairness I have previously discussed. He has never had the benefit of a full or detailed response asserting any one of the exemptions claimed by the appellant and for me to proceed to make findings about them in those circumstances would perpetuate that unfairness.
It is for that reason that I have determined that justice and fairness require that this matter proceed in the way it ought to have, had the appellant and the Ombudsman complied strictly with the provisions of the FOI Act. That requires the appellant to comply with my directions with respect to s 23 generally, to address its mind to s 20(4) (as I apprehend the respondent will make such a request, anyway) and the Ombudsman to then consider and make his decision with respect to each document and against the recommendations I have made.
As there are other outstanding requests before the Ombudsman, it appears to me to be in the interests of all parties that they, along with the current matters, be resolved promptly and together so as to avoid a multiplicity of proceedings.
In passing, it seems to me that a more fruitful course of action for the respondent would be to seek the production of documents pursuant to Rule 9(a) of the Legal Practitioners Disciplinary Tribunal Rules, but that is a matter for him.