Wagh and Australian Postal Corporation

[2007] AATA 1948

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1948

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0331

GENERAL ADMINISTRATIVE DIVISION		)
Re		VASANT WAGH

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date14 November 2007

PlaceSydney

DECISION

Decision

I am of the view that it is appropriate to limit the purpose for which the documents sought by the Australian Postal Corporation can be used. Accordingly I release the letters of 13 and 15 May 2007 subject of this application to the Respondent, for use only in the course of particular proceedings at the Tribunal, subject to section 35(2) of the Administrative Appeals Tribunal Act 1975. I limit the letters for use in the Respondent’s application made pursuant to section 42B of the Administrative Appeals Tribunal Act 1975, and the substantive hearing of Mr Wagh’s application for review under the Freedom of Information Act 1982, made  at the Tribunal.

In the alternative, I direct pursuant to the discretion afforded me by section 33(2A)(a) of the Administrative Appeals Tribunal Act 1975, that copies of the letters be provided to the Respondent with the same restrictions as mentioned above. As the letters are in the possession of the Tribunal, the Applicant should be mindful of this Direction, but need do nothing further.

.................[sgd].............................

Ms G Ettinger     

Senior Member

CATCHWORDS

Summons material – Applicant gave instruction for former solicitor to read out parts of two letters from the Applicant to him at an AAT conference held pursuant to section 34A of the Administrative Appeals Tribunal Act 1975 – no argument that the letters are privileged – conversation at the conference indicated copies of the letters were to have been made available to the Respondent – Applicant resiles from the stated acceptance of provision of the letters to the Respondent – Respondent agrees to deal with the letters on a restricted basis if provided – has privilege been waived – consideration of the content of the letters read, and the actual documents – letters released for restricted use under section 35(2) orders.

Administrative Appeals Tribunal Act 1975 ss 2A, 3(1), 33, 34A, 34E, 35(2), 37(2), 37(3), 38, 39, 40(1A), 40(1B)

Freedom of Information Act 1982

Mann v Carnell (1990) 201 CLR 1

Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792

Kioa v West (1985) 159 CLR 550

Benecke v National Australia Bank (1993) 35 NSWLR 110

Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101

Patrick v Capital Finance Corporation (Australasia) Pty Ltd [2004] FCA 120

Commonwealth v Verwayen (1990) 170 CLR 394

AWA Ltd v Daniels(t/as Deloitte Haskins & Sell) and Others (1992) 7 ACSR 463

REASONS FOR DECISION

14 November 2007 Ms G Ettinger, Senior Member     

BACKGROUND

1.      Mr Vasant Wagh has lodged an appeal to this Tribunal against a decision of the Australian Postal Corporation, (Australia Post), the Respondent in these proceedings, in relation to his request for documents from it under the Freedom of Information Act 1982. It is not unusual in such applications that certain documents or parts of documents are withheld, and it is against this decision of Australia Post dated 21 December 2006 which Mr Wagh appeals.

2.      However, the purpose of the Hearings of Return of Summons and Directions Hearings held on 7 August 2007 and 3 October 2007, was to deal with the request made by Australia Post, and the summons issued for release to it of two letters, dated 13 and 15 May 2007, written by Mr Wagh to his former solicitor, Mr S Mainstone of Mainstone Lawyers.

3.      The parties agree, and I accept that the subject letters are subject to legal professional privilege (Mann v Carnell (1999) 201 CLR 1). Further his Honour Justice Downes, President of this Tribunal has recently held in Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792 that a party in a matter before this Tribunal is entitled to make claims of privilege as appropriate.

4. However I must consider whether that privilege was waived by the fact that parts of the letters were read out during a Conference before a Conference Registrar of the Tribunal conducted pursuant to section 34A of the Administrative Appeals Tribunal Act 1975, (the Act), and whether they should be released to the Respondent for that, or some other reason.

5.      In carrying out its functions, the - tribunalTribunal must, pursuant to section 2A of the Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

6. Pursuant to section 39 of the Act, I must ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case, to know what the case is about, and to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding. The parties must also have the opportunity of making submissions in relation to those documents. These are the basic indicia of procedural fairness (Kioa v West (1985) 159 CLR 550).

7.      In coming to a conclusion, I have considered both the legislation and relevant case law, and I have decided that the letters of 13 and 15 May 2007 should be released to the Respondent. I have noted Mr Batskos’ agreement that use of the letters be limited, and I have agreed that it is appropriate their use should be restricted to particular matters in the AAT (section 35(2)). My reasons follow.

QUESTIONS BEFORE THE TRIBUNAL

8.      The question to be answered is whether Mr Wagh’s letters of 13 and 15 May 2007 written to his solicitor in connection with his appeal at the Tribunal should be released to the Respondent. In doing so:

· I have considered whether privilege over the letters has been waived because parts of the letters were read out by Mr Mainstone, as instructed by Mr Wagh, at a Conference at the Tribunal conducted pursuant to section 34A of the Act.

· I have considered the provisions of section 34E of the Act.

·     I have considered the content of the letters as against the letters themselves.

· I have considered the application of sections 40(1A) and (1B) of the Act.

· I have considered the application of section 33(2A)(a) of the Act.

RELEVANT LEGISLATION

9.      The relevant legislation is the Administrative Appeals Tribunal Act 1975, in particular sections 2A, 33, 34E, 37(2), 37(3), 35(2), 39, and 40(1A) and (1B).

10. The Tribunal’s preliminary conferences are held pursuant to section 34A of the Act which follows as relevant.

“(1)     If an application is made to the Tribunal for review of a decision, the President may:

(a)       direct the holding of a conference of the parties or their representatives in relation to the proceeding, or any part of the proceeding or any matter arising out of the proceeding; or

(b)       direct that the proceeding, or any part of the proceeding or any matter arising out of the proceeding, be referred for a particular alternative dispute resolution process (other than conferencing).

(2)       The President may also direct the holding of conferences of the parties or their representatives in the case of applications made to the Tribunal for review of decisions of a kind specified in the direction.

…

each party must act in good faith in relation to the conduct of the alternative dispute resolution process concerned.”

11. Pursuant to section 34E evidence of anything said, or any act done at a Conference is not admissible in a court or in proceedings before this Tribunal.

12.     Section 37 of the Act mandates the decision-maker to lodge its statement of reasons and relevant documents in relation to a particular matter in which he or she has made the decision.

“Decision‑maker must lodge statement of reasons and relevant documents

(1)       Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:

(a)       a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

(b)       every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.

(1AA)   The Tribunal may direct a person who is required to lodge with the Tribunal 2 copies of a statement or other document or part of a document under subsection (1) to lodge with the Tribunal such number of additional copies, and within such period, as the Tribunal determines and, if the Tribunal gives such a direction, the person must comply with it.”

13. Pursuant to sections 37(2) and 37(3) and 38 of the Act the Tribunal has the power to require the lodgement of additional documents. As relevant the sections follow:

“Tribunal may require other documents to be lodged

(2)       Where the Tribunal is of the opinion that particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be given to the person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal, within a time specified in the notice, the specified number of copies of each of those other documents that is in his or her possession or under his or her control, and a person to whom such a notice is given shall comply with the notice.

Privilege and public interest

(3)       This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.

38  Power of Tribunal to obtain additional statements

(1)       Where the Tribunal considers that a statement referred to in paragraph 37(1)(a) that is lodged by a person with the Tribunal does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for a decision, the Tribunal may order that person to lodge with the Tribunal, within a time specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.”

14.     Section 35 of the Act provides the power to order that a hearing be in private, or restrict the publication of material. As relevant the section follows:

“ 35 (2)  Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

(a)  direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and

(aa)  give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and

(b)  give directions prohibiting or restricting the publication of evidence given before the Tribunal whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and

(c)  give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal in relation to the proceeding.”

THE SUMMONS PROCESS

15.     I am satisfied that the summons process was correctly carried out pursuant to the Act.  Mr Mainstone partially complied with it in providing the letters of 13 and 15 May 2007 to the Tribunal (sections 40(1A) and (1B) of the Act).  However, he omitted to include the third and last page of the letter of 15 May 2007 which came to my attention when I inspected the letters in connection with the preparation of these Reasons for Decision. Accordingly I asked the District Registrar of the Tribunal to write to Mr Mainstone drawing the omission of the third page of the letter of 15 May 2007 in his reply, to his attention, and asking him to provide it.  She did so on 7 November 2007; copies of the District Registrar’s letter were also forwarded to Mr Wagh and Mr Batskos. Mr Mainstone replied by facsimile on 12 November 2007 enclosing the third page of the letter of 15 November 2007, and apologising for “any inconvenience caused by the oversight of only the first two pages originally being sent.”

16. Mr Wagh’s submissions that Mr Mainstone had reasonable excuse not to comply with the summons at all because of the provisions of section 34E of the Act, and because the letters are privileged, simply do not override Mr Mainstone’s professional duty to respond to the summons, as he was obliged to do.

HAS PRIVILEGE OVER THE LETTERS OF 13 AND 15 MAY 2007 BEEN WAIVED

17.     I have already stated above that I am satisfied that legal professional privilege applies to Mr Wagh’s letters of 13 and 15 May 2007 because they were written by him to his former solicitor in relation to litigation. They relate to a claim before this Tribunal which is still on foot, and in relation to which the Respondent has requested that a summons be issued for release of those letters to him. There is a large body of law which deals with privilege, and waiver of that privilege.

18.     A leading case is Mann v Carnell (1999) 201 CLR 1 where the Court stated:

“Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege…”

19.     I now need to consider whether privilege was waived through Mr Mainstone reading out parts of the letters at a Tribunal Conference.

20.     Mr Batskos asserted that privilege was waived because the contents, or at least a part of the contents of those letters were, with the permission of the Applicant, (which is not disputed), read out by his then solicitor, at the Tribunal’s Conference.

21.     Mr Wagh made submissions both in writing and orally, and was assisted by his adult sons, Nilesh Wagh and Amit Wagh who appeared at the Tribunal with him. I have summarised his argument in the paragraphs which follow.

22.      Mr Wagh’s main argument against the release of the letters was that they are subject to legal professional privilege because they were written to his solicitor. In support of that argument he referred to the principles of legal professional privilege given in a manual of the ATO. He argued that privilege had not been waived either explicitly or by his conduct, particularly as he had not been present at the second Conference where parts of the letters of 13 and 15 May 2007 were read out by his solicitor.

23. Mr Wagh also referred to section 34E of the Act which relevantly states as follows:

“34E  Evidence not admissible

(1)       Evidence of anything said, or any act done, at an alternative dispute resolution process under this Division is not admissible:

(a)       in any court; or

(b)       in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory to hear evidence; or

(c)       in any proceedings before a person authorised by the consent of the parties to hear evidence.

Exceptions

(2)       Subsection (1) does not apply so as to prevent the admission, at the hearing of a proceeding before the Tribunal, of particular evidence if the parties agree to the evidence being admissible at the hearing.

…”

24. Mr Wagh emphasised that section 34E of the Act states that evidence of anything said or done at a Tribunal Conference is not admissible in any proceedings, and that he had not agreed to the release of any information regarding the letters of 13 and 15 May 2007 outside of the Conference. Mr Wagh said that he had written the letters to Mr Mainstone in order to instruct him in regard to his attendance at the Conference. Mr Wagh told me that he himself did not attend the second Conference, and instructed Mr Mainstone to read out parts of the letters at the Conference because he expected that pursuant to the legislation, the Conferences were confidential, and that his material from those could only be released if he agreed. He emphatically stated that he did not agree at all with release of anything presented to the Conference.

25.     Mr Wagh also referred to a letter of 28 May 2007 from Mr Mainstone to the Tribunal, which had also been given to Mr Batskos. In that letter Mr Mainstone stated as follows in regard to privilege:

“I note that in regards to this issue (legal professional privilege) Mr Batskos indicated that by instructing me to read from those letters surely my client had waived privilege regarding the documents. I am not necessarily of the same view. It is my view that unless both parties agree, anything said or done during the course of a conference cannot be used at a subsequent hearing. I would suggest therefore that my client has not waived privilege regarding these documents in regard to any subsequent hearing, be it pursuant to an application under section 42B or in a full hearing of my client’s application.”

26.     Mr Wagh also argued that because he had instructed his solicitor not to provide the letters to the Respondent, privilege had not been waived.

27.     Mr Wagh also argued that in his letter of 4 July 2007, Mr Mainstone had correctly stated that the portions of the letters read out were only for purposes of the Conference, and that a timetable had been set by the Conference Registrar for the service of documents, including what the Respondent had agreed were to be “comprehensive statements of facts and contentions and issues and affidavit evidence”. Mr Wagh also recalled that Mr Batskos had indicated this would be done before the Applicant was required to provide any material because in FOI matters, the Respondent bears the onus of proof.

28. Mr Wagh also asserted that notwithstanding Mr Mainstone’s letter of 4 July 2007 where Mr Mainstone had restated that legal professional privilege applied to the letters of 13 and 15 May 2007, and stated that his client objected to complying with the summons, he had in fact complied with it. Accordingly, Mr Wagh submitted that the action was void because it had been unauthorised. Mr Wagh also submitted that Mr Mainstone had reasonable excuse not to comply with the summons because of the provisions of section 34E of the Act, and because the letters are privileged.

29.     In coming to a decision, I am mindful that waiver may be express or implied. The following emanates from Mann v Carnell:

“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. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. 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.”

30.     I have noted Mr Wagh’s submission that by permitting the contents of the letters to be disclosed in a Tribunal conference, he did not intend to waive privilege. In considering that, I have noted that, in Benecke v National Australia Bank (1993) 35 NSWLR 110, the full Court of the Supreme Court of NSW emphasised that the Appellant in that case did not subjectively intend to abandon privilege. The Court stated that she may not even have turned her mind to the question. However, it was her intentional act of giving evidence in legal proceedings concerning her instructions to a barrister in the belief that the information was privileged, which was inconsistent with the maintenance of the confidentiality of the communication. What brought about the waiver in that case was the inconsistency, even though the Appellant apparently believed she could prevent the barrister from giving the barrister's version of those instructions.

31.     The Court held in Benecke that it was the inconsistency which the Court, where necessary, informed by considerations of fairness, perceived, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

32.     In Mann v Carnell, the Court, referring to inconsistency, held that the law recognises an inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Inconsistency in relation to waiver of privilege has been considered in many cases such as Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101, and Benecke.

33.     Mr Wagh’s subjective intentions about why he wrote the letters and authorised his solicitor to read out the contents at a Conference are inconsistent with now wanting to maintain privilege over them. The principle of inconsistency is entirely applicable to Mr Wagh’s case.

34.     Further, in the last paragraph of Mr Wagh’s letter of 15 May 2007 to Mr Mainstone, which was initially not provided to the Tribunal when the summons was answered by Mr Mainstone, Mr Wagh relevantly stated:

“If you do have a telephone conference on Tuesday 15 May 2007 at 5:00 pm, I have no objection for you to disclose the information contained in this letter and my previous letter dated 13 May 2007 to the Tribunal and Respondent.”

35.     Mr Batskos cited cases where he submitted that the Courts had dealt with parties who approbate and reprobate, submitting that having chosen to make the instructions provided to his solicitor known at the Conference, he could not now resile from that position. In support of that argument Mr Batskos cited several cases, of which I mention two, Patrick v Capital Finance Corporation (Australasia) Pty Ltd [2004] FCA 120 and Commonwealth v Verwayen (1990) 170 CLR 394.

36.     As to fairness; in Mann v Carnell the Courts determined whether privilege is maintained, where necessary informed by considerations of fairness. The Court there stated that it was not some overriding principle of fairness operating at large. Mr Batskos submitted that in a case such as this, where Mr Wagh had made a partial disclosure of privileged communications in a Conference to advance his position in litigation, it was not now fair to prevent disclosure of the balance (Bennett v Chief Executive Officer of the Australian Customs Service). Mr Batskos referred to Tamberlin J’s words in Bennett:

“In my view it would be inconsistent and unfair, having disclosed and used the substance of the advice in this way, to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion.”

37.     I find that, regardless of his subjective intentions, there is inconsistency in Mr Wagh authorising disclosure of part of his privileged communications in a Conference, and now wishing to withhold the letters on the basis of privilege. Inconsistency in the terms found in the cases of Mann v Carnell and Bennett v Chief Executive Officer of the Australian Customs Service characterises Mr Wagh’s situation.

38.     I am satisfied also that Mr Wagh having instructed his solicitor to disclose the substance of his letters by reading out parts of the content, cannot now resile from that, and seek to claim privilege over the letters. In the terms of Commonwealth v Verwayen, he cannot approbate and reprobate.

39.     Privilege was waived at the Conference and the letters should be released to the Respondent. I have considered the conditions related to the release further on in these Reasons for Decision.

40.     Dealing finally with Mr Wagh’s point about Mr Mainstone’s letter of 4 July 2007 in which the solicitor stated that his client objected to complying with the summons, but had then complied nevertheless. Mr Wagh submitted that the compliance with the summons was void because it had been unauthorised by him, and accordingly there was no waiver of privilege. In regard to this argument, I have already stated in the paragraphs above, that Mr Mainstone’s professional obligations were complied with in replying to the summons, which is accordingly, not void.

THE IMPLICATIONS OF SECTION 34E OF THE ACT

41. I am mindful that one of Mr Wagh’s main arguments for not agreeing to release the letters of 13 and 15 May 2007 to the Respondent was the confidentiality mentioned in section 34E of the Act in regard to Conferences. Section 34E states that evidence of anything said, or any act done at an alternative dispute resolution process such as a Conference is not admissible in proceedings before the Tribunal unless the parties agree to it being admissible. I have noted Mr Wagh’s submission that his case does not fall within the exception, section 34E(2), because he did not give the agreement foreshadowed there.

42.     As I have already indicated above, I am mindful that agreement can be express or implied.

43.     In that regard I noted the Respondent’s submission that Mr Wagh’s letter of 3 August 2007, and letters of Mr Mainstone written on his behalf, being letters of 28 May 2007 and 4 July 2007, all refer to what occurred at the Conference of 15 May 2007. I prefer the Respondent’s submission which is that by his conduct, Mr Wagh has impliedly agreed to the use of the material. That is referable to Mr Wagh authorising his solicitor to read out the letters or parts of them at the Conference. In addition, he relevantly stated in the last paragraph of his letter of 15 May 2007 to his solicitor:

“If you do have a telephone conference on Tuesday 15 May 2007 at 5:00 pm, I have no objection for you to disclose the information contained in this letter and my previous letter dated 13 May 2007 to the Tribunal and Respondent.”

44.     In addition, the privilege attaches to the information, and not to the letters, which are discoverable. As authority for that proposition, I refer the parties to the case of AWA Ltd v Daniels (t/as Deloitte Haskins & Sells) and Others (1992) 7 ACSR 463. In that case, the matter came before Rogers CJ (Comm Div) following a mediation which did not resolve the problem, the mediation being a forum where the parties sign agreements which include confidentiality clauses. It was a case where the Plaintiff was suing the Defendants, his former auditors. What was in issue was a document referred to in the course of the mediation. His Honour said:

“The difficult situation I have in mind is where, but for the happenstance that a statement is made, in the belief that, it and everything it might lead to would remain confidential the objective facts and evidence of them would remain unknown to the other party. That of course would be a rare case indeed. If the objective evidence were in a documentary form, in the possession of the party making a statement referred to in it, then if the subject was relevant the document would be discoverable. It is where the evidence, if documentary is not in the control, or possession, of the party seeking to protect its contents, or if not documentary, the material will remain unknown to the other party but for the disclosure at the mediation that the problem may arise. In the present case, the Deeds would have been discoverable if relevant to any issue. Accordingly, the problem should not have arisen. Conversely if the Deeds are not relevant the whole question is moot.”

45.     In AWA Ltd v Daniels, his Honour also referred to the situation in the Community Justice Centres. He stated:

“It is important that, when the time comes for the implementation of the recommendations of the Policy and Planning Sub-Committee on Court Annexed Arbitration, the problems arising from the obligations of confidentiality are catered for in the legislation or the Rules to govern mediations. The Sub-Committee recommended that the precedent of s28 of the Community Justice Centres Act 1983 be borne in mind. Subs(4) makes inadmissible ‘evidence of anything said or any admission made in a mediation session’. That presumably would not exclude objective evidence the existence of which was previously unknown to the other party and which was brought to its notice exclusively by what was said, otherwise than by way of admission at the mediation.”

46.     I find that on fours with the situation in this case relating to the letters of 13 and 15 May 2007, and that the Applicant having made their existence known through his legal representative, cannot now resile from producing them.

THE TRIBUNAL’S POWERS UNDER SECTION 33 OF THE ACT

47. I have also considered section 33 of the Act which deals with procedure at the Tribunal, and provides a broad discretion, whilst urging expedition and informality. The strict rules of evidence do not apply, and the Tribunal may inform itself on any matter in such manner as it thinks appropriate. A proper consideration of the matters before the Tribunal, application of the various Practice Directions, and considerations of relevance and fairness are the criteria for the exercise of the discretion in regard to procedures.

48. As relevant section 33 follows;

“33  Procedure of Tribunal

(1)       In a proceeding before the Tribunal:

(a)       the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)       the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)       the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

…”

49. A proceeding of the Tribunal is defined in section 3(1) of the Act, and may include not only an application to the Tribunal for review of a decision, or be in relation to a number of other matters, but may include an incidental application to thehttp:// - tribunal Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph. As relevant the definition of proceeding follows:

"proceeding" , in relation to the Tribunal, includes:

(a)  an application to the Tribunal for review of a decision; and

….

(e)  an application to the - tribunalTribunal under subsection 62(2) of the Freedom of Information Act 1982; and

(f)  any other application to the Tribunal under this Act or any other Act; and

(g)  any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and

(h)  an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.”

50. I can also consider the application of section 33(2A)(a) of the Act which includes giving a direction to a person who is a party to the proceeding to provide further information in relation to the proceeding.

“Types of directions

(2A)     Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:

(a)       require any person who is a party to the proceeding to provide further information in relation to the proceeding; or

…”

51.     I am therefore satisfied that I can inform myself on any matter, and in such manner as I think appropriate.

52.     I am satisfied from considering the evidence and submissions before me that the letters of 13 and 15 May 2007 are relevant to the fair and timely resolution of the issues in the matters before the Tribunal.

53. Accordingly I can make a direction pursuant to section 33(2A) of the Act for the Applicant to provide the letters of 13 and 15 May 2007 to the Tribunal, and to the Respondent, and I do so. As the documents are already in the possession of the Tribunal, the Applicant need do nothing further.

54. However I am of the view that it is appropriate to limit the purpose for which the documents can be used. I release the letters of 13 and 15 May 2007 to the Respondent for use only in the course of particular proceedings at the Tribunal, that is the section 42B application, or ultimately the substantive hearing of Mr Wagh’s application for review of the Freedom of Information application at the Tribunal.

CONCLUSIONS

55. I have found that Mr Wagh waived privilege over the letters of 13 and 15 May 2007 when parts of the letters were read out at the Tribunal Conference, and that they are to be released to the Respondent forthwith with the restrictions I have discussed in the paragraphs above. These are that pursuant to section 35(2) of the Act, they may be used only in the course of particular proceedings at the Tribunal, that is the section 42B application, or ultimately the substantive hearing of Mr Wagh’s application for review of the Freedom of Information application at the Tribunal.

56. In the alternative, I direct pursuant to the discretion afforded me pursuant to section 33(2A)(a) of the Act that copies of the letters be provided to the Respondent. As they are in the possession of the Tribunal, this will be effective immediately.

DECISION

57. I am of the view that it is appropriate to limit the purpose for which the documents sought by the Australian Postal Corporation can be used. Accordingly I release the letters of 13 and 15 May 2007 subject of this application to the Respondent, for use only in the course of particular proceedings at the Tribunal, subject to section 35(2) of the Administrative Appeals Tribunal Act 1975. I limit the letters for use in the Respondent’s application made pursuant to section 42B of the Administrative Appeals Tribunal Act 1975, and the substantive hearing of Mr Wagh’s application for review under the Freedom of Information Act 1982, made at the Tribunal.

58. In the alternative, I direct pursuant to the discretion afforded me by section 33(2A)(a) of the Administrative Appeals Tribunal Act 1975, that copies of the letters be provided to the Respondent with the same restrictions as mentioned above. As the letters are in the possession of the Tribunal, the Applicant should be mindful of this Direction, but need do nothing further.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:         ..............[sgd]................................................................
  Associate

Date of Hearing  7 August 2007 and 3 October 2007

Date of Decision   14 November 2007

The Applicant  In Person, with Nilesh and Amit Wagh

Solicitor for the Respondent          Mr M Batskos, FOI Solutions