Van De Wiel and Civil Aviation Authority
[2007] AATA 1841
•8 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1841
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200500608
GENERAL ADMINISTRATIVE DIVISION ) Re STAN VAN DE WIEL Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date8 October 2007
PlaceMelbourne
Decision The Tribunal varies the decision under review in the following terms:
Documents 1-17, 19-21, 23, 25-27, 29-30, 33-34 and 36 inclusive are subject to legal professional privilege; legal professional privilege claimed for Document 22 is waived due to inadvertent disclosure; and, the second, fourth and tenth classes of additional documents do not fall within the request under the Freedom of Information Act 1982.(sgd) Egon Fice
Member
FREEDOM OF INFORMATION – exemptions – legal professional privilege – documents used by the agency or its officers in making decisions or recommendations – salaried legal advisers – inadvertent disclosure
Freedom of Information Act 1982
AWB Limited v Cole and Another (2006) 152 FCR 382
AWB Limited v Cole and Another (No 5) (2006) 155 FCR 30
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123
Guinness Peat Ltd v Fitzroy Robinson [1987] 2 All ER 716
Mann v Carnell (1999) 201 CLR 1
REASONS FOR DECISION
8 October 2007 Mr Egon Fice, Member 1. Mr Stanislas Van De Wiel wrote to the Freedom of Information Co-ordinator, Civil Aviation Safety Authority (CASA) on 18 January 2005 seeking access to 50 classes of documents. Following a preliminary investigation by CASA’s Office of Legal Counsel, CASA informed Mr Van De Wiel by letter dated 9 February 2005 that it would take CASA approximately four person months to peruse and search CASA files in order to find the documents which he had requested. CASA refused Mr Van De Wiel’s request under s 24(1)(a) of the Freedom of Information Act 1982 (FOI Act) on the ground that the work involved in processing the request would substantially and unreasonably divert the resources of CASA from its other operations.
2. Mr Van De Wiel sought review of that decision. On 9 March 2005 CASA gave Mr Van De Wiel notice under s 24(6) of the FOI Act that it intended to refuse Mr Van De Wiel’s request in the form in which it had been made and recommended that he refine the scope of his request by reducing the number of documents sought. Mr Van De Wiel rejected that suggestion. On 5 July 2005 CASA informed Mr Van De Wiel that, following an internal review pursuant to s 54 of the FOI Act, CASA maintained its position not to provide any documents to him. Mr Van De Wiel then applied to the Tribunal pursuant to s 55 of the FOI Act on 11 July 2005 for review of the decision.
3. After Mr Van De Wiel lodged his application with the Tribunal, and following correspondence with CASA, Mr Van De Wiel modified his request. CASA acceded to the modified request in part; but claimed that a number of the documents sought were exempt. These were some 35 documents which comprised 79 folios in total. CASA claimed exemptions pursuant to s 42 of the FOI Act, contending that the documents were subject to legal professional privilege. In addition to those documents, Mr Van De Wiel sought a further 10 classes of documents to which he referred in a letter dated 30 April 2007. Mr Van De Wiel again sought internal review of that decision and CASA provided a response. However, CASA did not treat Mr Van De Wiel’s modified request for documents as a discrete application, but rather as part of Mr Van De Wiel’s original application for review made on 11 July 2005.
4. The task for me in this matter is to determine the validity of the exemptions claimed in respect of the first 35 documents, and to assess whether CASA should provide the further 10 classes of documents referred to in Mr Van De Wiel’s letter of 30 April 2007.
RELEVANT LEGISLATIVE PROVISIONS
5. The object of the FOI Act is set out in s 3. It provides:
It is … to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth.
Furthermore, s 3 provides that:
It is the intention of the Parliament that the provisions of the [FOI] Act be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by the [FOI] Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information. …
6. However, the right of access is not absolute as is made clear in s 11 of the FOI Act:
Every person has a legally enforceable right to obtain access in accordance with this Act to a document of an agency, other than an exempt document.
Furthermore, the right is also qualified in circumstances where compliance with the request in s 24(1)(a)… would substantially and unreasonably divert the resources of the agency from its other operations. Also, requests may be refused where:
24A …
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist. (s24A)
7. CASA relied upon the exemption provision that is set out in s 42 of the FOI Act. It provides as follows:
42 Documents subject to legal professional privilege
(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document of the kind referred to in subsection 9(1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).
8. The reference in s 42(2) to s 9(1) of the FOI Act is of some significance given the argument presented by Mr Van De Wiel. He submitted that the exemption claimed by CASA under s 42 of the FOI Act did not apply to the documents for which legal professional privilege was claimed because they were documents which fell within s 9(1). Section 9(1) of the FOI Act provides that certain documents that are provided by the agency for the use of, or are used by, the agency or its officers in making decisions or recommendations under or for the purpose of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or maybe entitled, must be made available for inspection and for purchase by members of the public. Four categories of documents are listed under s 9(1) and they are as follows:
(a)manuals or other documents containing interpretations, rules, guidelines, practices or precedents including, but without limiting the generality of the foregoing, precedents in the nature of letters of advice providing information to bodies or persons outside the Commonwealth administration;
(b)documents containing particulars of a scheme, referred to in the opening paragraph, not being particulars contained in an enactment; (as published apart from this Act);
(c)documents containing statements of the manner, or intended manner, of administration or enforcement of an enactment or scheme referred to in the opening paragraph; or
(d)documents describing the procedures to be followed in investigating breaches or evasions or possible breaches or evasions of such an enactment or of the law relating to such a scheme;
9. Section 9(1) does not include documents that are available to the public as published otherwise by an agency or published by another agency.
10. The reference in s 42(2) removing the exemption on the grounds of legal professional privilege to a document of the kind referred to in s 9(1), applies only where a document of the kind described in s 9(1) has privileged matter included that is used or is to be used for the purpose of the making of decisions or recommendations referred to in s 9(1).
11. Part VI of the FOI Act deals with the review of decisions. Section 61 of the FOI Act provides that in proceedings under Part VI:
… the agency or Minister to which or to whom the request was made [for the production of documents] has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant. …
SECTION 42(1) Exemption Claimed – Legal Professional Privilege
12. Before proceeding with an examination of the individual documents which fall within this exemption claim, it is necessary to briefly set out the law as it relates to legal professional privilege claims.
13. Legal professional privilege is a rule of substantive law that reflects an important common law immunity. This was clearly expressed in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543. Gleeson CJ, Gaudron, Gummow and Hayne JJ said at:
[9] It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the "dominant purpose" test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation in place of the "sole purpose" test which had been applied following the decision in Grant v Downs.
…
[11] Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. …
14. As Young J said in AWB Limited v Cole and Another [2006] FCA 571 at [60] when referring to Daniels:
… legal professional privilege applies to communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. …
Three issues are raised by this statement. The first is whether the document was brought into existence for the dominant purpose of obtaining legal advice. The second is whether the document recorded legal advice that was provided by the respondent’s legal adviser for the benefit of the respondent. The third is whether the document was brought into existence for the dominant purpose of being used in connection with litigation that was reasonably in prospect.
15. In Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325, Anderson J rejected an argument that legal advice privilege only extended to what is literally either legal advice or a request for legal advice. He said at 323 – 333:
I do not think the authorities provided justification for concluding that the doctrine of legal professional privilege as applying to non-curial communications between solicitor and client has been refined to the extent submitted by council for the defendants, which would require professional communications to be excluded from the protection of privilege unless expressed as advice simpliciter or as a request for such advice or unless forming part of a communication expressed in that way. But anyway, I think it is the case that whenever a lay client gives instructions to a legal practitioner to perform specialist legal services involving the exercise of professional skill, there is imposed on the solicitor a duty to give any advice reasonably necessary to protect the client’s interests in the transaction whether expressly requested or not. Two cases in this court illustrating that rule are Watts v Public Trustee (WA) [1980] WAR 97 and Stone James & Co v Investment Holdings Pty Ltd [1988] WAR 363. See also MacPherson and Kelley v Kevin J. Prunty & Associates [1983] 1 VR 573. It is not a large step from that position to say that whenever a client gives instructions to his solicitor there is assumed to be a request for advice. In my opinion, discourse between solicitor and client with reference to the transactions covered by those instructions, that is, professional discourse in a professional capacity, should be regarded as a prima facie for the purpose of giving and receiving advice. This would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor’s engagement and any communication from the client to the solicitor in connection with that engagement. …
15. After considering all of the relevant cases, Young J in AWB Limited v Cole accepted that legal advice is not confined to telling the client the law, but it includes professional legal advice as to what should prudently and sensibly be done in the relevant legal context. Young J also noted that as an adjunct to the first limb of legal professional privilege, protection against disclosure has been extended to documents that record confidential legal advice or confidential legal work. He referred to examples such as legal research memoranda, draft pleadings, summaries of argument and draft arguments.
16. Young J also referred to the second limb of legal professional privilege as applying to confidential communications passing between a client, the client’s legal advisor and third parties for the dominant purpose of use in or in relation to litigation which is either pending or in contemplation. His Honour pointed out that the crucial difference between the first and second limbs of the privilege is that the second limb is not limited to communications whose dominant purpose is the giving or obtaining of legal advice. Communications lacking this advice element, such as communications between a solicitor and a prospective expert witness, would attract privilege where they occur in a litigation context.
17. I need to say something briefly about salaried legal advisors and their employers. This is because the documents for which the exemption claim is made by CASA originate from or are directed to CASA’s Office of Legal Counsel. CASA engages lawyers as employees in its legal service branch for the purpose of providing it with legal advice and for the purpose of conducting its hearings before this Tribunal and before the courts.
18. In AWB v Cole and Another (No 5) [2006] FCA 1234 at [44 (10)] Young J said:
Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford (Waterford v The Commonwealth (1987) 163 CLR 54); at CLR 96; ALR 705 per Dawson J; see also Deane J at CLR 79–82. …
19. Mr Van De Wiel agued that the documents which are the subject of the claim for exemption under s 42(1) of the FOI Act are not exempt for the reason that they fall within s 9(1). As the Full Court of the Federal Court said in Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 at 112:
[40] Thus, before the exception in s 42(2) operates, it must be necessary to identify a document of the kind referred to in s 9(1). There are several pre-requisites under s 9(1). First, the document must be one that is provided by Customs for the use of, or is used by, Customs or its officers in making decisions or recommendations. The employment of the phrase "is provided ... for the use of" and the employment of the present tense in the phrase "are used by" do not suggest documents brought into existence for the purposes of a particular case and not otherwise provided to officers or used by officers in other cases.
[41] Second, the document must be for use in making decisions or recommendations under, or for the purposes of, an enactment or scheme administered by Customs. …
20. Emmett J also indicated that the documents must be of the kind which are set out under s 9(1)(a)–(d) of the FOI Act. Therefore, for Mr Van De Wiel to succeed in his claim that legal professional privilege does not apply because of s 42(2) of the FOI Act, the documents for which legal professional privilege exemption is claimed by CASA must have been or are being used generally by CASA for the purposes set out in s 9(1) of the FOI Act. They must also be documents of the kind referred to in s 9(1)(a)-(d).
21. The problem for Mr Van De Wiel is that there was no evidence before me that the documents which are the subject of the exemption claimed under s 42(1), or their contents, were used for the purposes set out in s 9(1); that they fit the description of documents set out in s 9(1)(a)-(d); or that their contents were any way used by CASA or its officers in making decisions or recommendations under any enactment or scheme administered by CASA. I cannot therefore accept Mr Van De Wiel’s submissions that the exclusionary provisions set out in s 41(2) of the FOI Act apply to any of the documents for which exemption is claimed in s 41(1).
22. In the course of the hearing, CASA agreed to release a number of documents for which exemption was claimed. They are documents 18 (p52), 24 (p61), 30 (p71 last line only), 32 (p72), and 35 (p76). CASA has since provided copies of those documents to Mr Van De Wiel.
23. I am satisfied that the following documents fall within the exemption provided in s 41(1) of the FOI Act for the reasons stated. They are not documents of a kind referred to in s 9(1).
· Document 1 (pp1-2) – Refers to proposed litigation
· Document 2 (pp3-7) – Legal advice
· Document 3 (pp8-12) – Legal advice
· Document 4 (pp13-24) – Legal advice
· Document 5 (pp25-26) – Request for legal advice and legal advice
· Document 6 (p27) – Request for legal advice and legal advice
· Document 7 (pp28-29) – Request for legal advice and legal advice
· Document 8 (p30) – Request for legal advice and legal advice
· Document 9 (p31) – Legal advice
· Document 10 (pp32-35) – Legal advice
· Document 11 (pp36-39) – Request for legal advice and legal advice
· Document 12 (pp40-43) – Legal advice
· Document 13 (p44) – Request for legal advice and legal advice
· Document 14 (pp45-48) – Partially irrelevant, request for legal advice and legal advice
· Document 15 (p49) – Request for legal advice and legal advice
· Document 16 (p50) – Legal advice
· Document 17 (p51) – Legal advice
· Document 19 (p53) – Legal advice
· Document 20 (p54) - Legal advice
· Document 21 (pp55-56) – Legal advice
· Document 23 (pp59-60) – Legal advice
· Document 25 (pp62-63) – Request for legal advice and legal advice
· Document 26 (ppp64-67) – Legal advice
· Document 27 (p68) – Request for legal advice
· Document 29 (p70) – Legal advice
· Document 30 (p71) – Save for the last line, legal advice.
· Document 33 (pp73-74) – Legal advice
· Document 34 (p75) – Request for legal advice and legal advice
· Document 36 (pp77-79) – Legal advice
24. Mr Van De Wiel said that he had been provided with a copy of Document 22 (pp57-58), although CASA had claimed privilege over it. CASA submitted that the release was inadvertent and that there had not been a waiver. The High Court of Australia in Mann v Carnell (1999) 201 CLR 1 said at [29]:
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
25. Inadvertent disclosure by itself does not necessarily enable or give rise to loss of privilege (see Guinness Peat Ltd v Fitzroy Robinson [1987] 2 All ER 716). As Hollingworth J said in GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123, it all depends on what fairness requires in the case. Her Honour suggested that such matters as:
… how the recipient obtained the document; how quickly the party claiming privilege acted once it learned of the mistake; what, if any, use had been made of the information; what prejudice might flow to either side from the waiver or non-waiver of privilege; whether the inspecting party would have difficulty conducting the case whilst trying to ignore the content of the documents. …
26. It appears that Mr Van De Wiel has had Document 22 for some time, but it does not seem to me that its disclosure is in any way prejudicial to CASA. Certainly CASA did not claim any such prejudice. Although the legal advice contained in that document dealt with matters which were before the Tribunal on the hearing of Mr Van De Wiel’s application resisting cancellation of an Air Operator’s Certificate (AOC) and his Chief Pilot approval, the appeal lodged with the Federal Court of Australia has since been discontinued. I am therefore satisfied that the privilege claimed for Document 22 (pp57-58) is lost even though it was inadvertently disclosed. That seems to be what fairness requires in this case.
DOCUMENTS REFERRED TO IN CASA’S LETTER OF 31 MAY 2007
27. The first document that Mr Van De Wiel requested was his complete personal file held by CASA. CASA’s response was that it did not hold such a file despite the fact that Mr Van De Wiel had an Aviation Reference Number (ARN). CASA submitted that its medical branch would hold some documents, as would its licensing branch. CASA agreed to produce Mr Van De Wiel’s personal file regarding all of his licensing information and I have been informed that CASA has done so. CASA has also provided Mr Van De Wiel with all of his medical records for the past 10 years. CASA has provided Mr Van De Wiel with the notice of discontinuance which was filed in the Federal Court appeal following his hearing before the Administrative Appeals Tribunal (AAT).
28. The second class of documents requested by Mr Van De Wiel was described as correspondence between CASA and the Director of Public Prosecutions (DPP) regarding action against Exxon Mobil in respect of the fuel contamination cover-up. CASA’s response was that Mr Van De Wiel’s original request for documents did not include this category and therefore, strictly speaking, it was not a matter which could be reviewed by the Tribunal. Nevertheless, CASA informed me that it had searched for such correspondence and could not locate any documents fitting the description. I am satisfied that I cannot take this matter any further, given that the Tribunal is limited by s 55(1)(a) of the FOI Act to a decision refusing to grant access to a document in accordance with a request. Furthermore, the person is not entitled to make an application to this Tribunal under s 55(1) in relation to a decision which is subject to internal review under s 54 where that internal review has not taken place (s 55(2)).
29. The third class of documents was described as a letter from the Aviation Transport Safety Bureau (ATSB) to CASA regarding an incident in which Qantas was involved at Launceston in a night takeoff without the runway lights having been turned on. CASA said it was unable to locate any such correspondence. It also said that a brief of evidence has been referred to the DPP by CASA and that charges relating to that matter are before the court. I am satisfied with that response.
30. The fourth class of documents was described as Minutes relating to the CASA Board/OLC (Office of Legal Counsel) advice in regard to the decision to appeal the AAT decision. CASA’s response was that there was no Board decision or Office of Legal Counsel advice of this type and that there are no documents of the nature sought. I accept that response.
31. The fifth class of documents was described as an advice from P. Ilyk and the Office of Legal Counsel to the CASA Board in regard to the decision relating to the appeal. CASA claims exemption under s 42(1) of the FOI Act. Mr P. Ilyk was CASA’s General Counsel and he reported to the CASA Board. I accept that the advice given by General Counsel to the CASA Board falls within the exemption in s 42(1) of the FOI Act.
32. The sixth class of documents was described as copies of Minutes in relation to the decision to discontinue the action against Mr Van De Wiel in the Federal Court. CASA again relies on the s 42(1) exemption, but nevertheless has provided Mr Van De Wiel with a copy of the notice of discontinuance. Although I have not seen the documents, I accept CASA’s submissions that the documents would be privileged given the fact that they were prepared for the purpose of and in anticipation of (discontinuing) litigation in the Federal Court.
33. The seventh class of documents was described as exchanges between P. Ilyk and others at CASA regarding the decision to withdraw from the action regarding the Qantas night takeoff at Launceston. CASA has not been able to locate any such documents. I accept that to be so.
34. The eighth class of documents was described as all background authorisations to changes to the Enforcement Manual in relation to Ian Ogilvy’s authority as at April 2002 and details of publication of these changes accessible to the general public. CASA responded that it was not clear from the description what documents Mr Van De Wiel was seeking. CASA explained that Mr Ogilvy had held delegated Director’s powers to cancel AOCs since December 2001. CASA’s Enforcement Manual at that time (version 2, May 2001) provided for delegates to cancel AOCs. CASA was unable to find any evidence that the manual was amended in 2002. I accept that to be a fair response from CASA. Should Mr Van De Wiel require copies of the Enforcement Manual it would seem to me that this document would fall under s 9(1)(a) of the FOI Act and ought to be provided.
35. The ninth class of documents was described as all documents relating to the de‑registration of aircraft VH MVE and documents relating to the re-registration of that aircraft, including the three sets of application forms submitted over a period 18 months in relation to the change of ownership. CASA has provided those documents to Mr Van De Wiel.
36. The tenth class of documents was described as all communications between CASA and the ATSB in relation to the fuel contamination issue as documented in the ATSB report Systemic Investigation into Fuel Contamination. CASA submitted that these documents did not fall within Mr Van De Wiel’s original request and therefore it refused to respond to it. I accept that the documents are not described in Mr Van De Wiel’s original request for documents under the FOI Act and therefore there has been no internal review under s 54 of the FOI Act. For reasons I have already given, the Tribunal cannot therefore review that decision.
CONCLUSION
37. For the reasons set out above, I accept the exemptions claimed by CASA, except where I have indicated to the contrary. In those cases, CASA has already provided those documents to Mr Van De Wiel. The decision about the remaining documents which did not fall within the original FOI request cannot be reviewed by the Tribunal at this time.
I certify that the thirty-seven [37] preceding paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Member.
Signed: Ursula Noyé
Clerk
Date of Hearing 31 August 2007
Date of Decision 8 October 2007
Advocate for the Applicant Self-represented
Solicitor for the Respondent Mr A Anastasi
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