Victorian Civil and Administrative Tribunal|2004-05-20

Adelaide Brighton Cement Limited v Victorian Rail Track [2004] VCAT 930 (20 May 2004)

Freedom of Information Act 1982 - s.30 exemption - s.32 exemption - legal professional privilege - advice to agency re commercial dispute - absence of waiver - exempt documents.

1. The Respondent should grant to the Applicant access to Document 4 in its Amended Schedule of Documents Exempt Under s.30 of the Freedom of Information Act 1986. The application is otherwise dismissed.

1 This application comes before me pursuant to s.50 of the Freedom of Information Act 1982 ("the Act"). It is brought by the Applicant, Adelaide Brighton Cement Limited ("ABC") which seeks to review a decision of Victorian Rail Track ("VRT") taken on 7 July 2003. Such decision being one to refuse to ABC access to certain documents on the grounds of exemptions under the Act, following a request by ABC to VRT for documents relating to a railway line from North Geelong to Fyansford ("the railway").

2 I am conscious of the objects of the Act as set out in s.3. I am conscious of the method of interpretation of the Act to be adopted as set out in s.3(2). I am aware of the various authorities, which could be summarised as standing for the proposition that it is proper to give the relevant provisions of the Act a construction which would further, rather than hinder, free access to information and that the Act is to be interpreted generally in favour of access but not so as to override specific provisions. I am also aware that VRT bears the onus of proof in attempting to establish that the documents are exempt documents. I am also conscious of statements that have been made both inside and outside Parliament by Members, including the Attorney-General of the present Government, concerning the desirability of there being openness and accountability in Government and by various agencies. I have borne the above matters in mind, and have applied them, in coming to a decision in the present case

3 I am also conscious of the fact that some care has to be taken by me in formulating the wording of this judgment so that details of the information sought are not revealed. I am aware that, should the result be in favour of ABC, I should not render any appeal process effectively useless by "letting the cat out of the bag" in my reasons. Similarly, should the result fall the other way, I should not descend into such detail as to give ABC the information which it seeks, whilst at the same time finding against it.

4 I would also make the following observation. For reasons which were not explored, Mr Gronow of Counsel, on behalf of ABC, has not examined the documents in dispute pursuant to an undertaking given pursuant to s.56(3) of the Act. As I have discussed previously in Stewart v Department of Tourism, Sport and the Commonwealth Games (delivered 30 January 2003), this situation has the potential to create a number of difficulties in the conduct of the matter and generally the approach adopted by His Honour Judge Nixon in O'Sullivan v Victoria Police Department (unreported, 4 December 1984) is to be adopted. Because the difficulties encountered in this particular case were minimal, I shall say nothing further about this aspect of the matter, other than that I have had to bear in mind that counsel for ABC has apparently not perused the documents in dispute.

5 This application is brought against the background of what could be described as a commercial dispute of some complexity. Needless to say, I am making no finding of any kind in relation to the merits of that dispute, and matters of fact now referred to are assumptions made solely for the purpose of placing this application in context.

6 The railway, which is a branch line, was constructed pursuant to provisions of the North Geelong to Fyansford Railway Construction Act 1916 ("the Construction Act"). Its purpose was to carry goods, not passengers, and it served cement works at Fyansford. Apart from the actual track, there is, as is inevitably the case, land adjacent to that track. The Act authorising the construction of the railway was amended from time to time, including in 1934.

7 Apparently the land upon which the track was constructed was originally owned by the Australian Portland Cement Company Pty Ltd, which operated the cement works. The Act as amended provides that, if the railway is closed, the land, after a certain period, reverts to Australian Portland Cement Company or, arguably, its successors and assigns of which ABC claims to be one. As I understand it, there is now a dispute as to whether the line, or at least the area in the vicinity of the Fyansford terminus, is or should be closed and, if so, whether the terminus portion of it reverts to ABC, or whether ABC has to outlay a sizeable purchase price in order to acquire it.

8 The above is meant to be the briefest of thumbnail sketches in relation to the background of this dispute. The legal dispute itself can be traced to what can be described as a letter of demand from ABC to VRT, such letter being dated 18 August 1999. Thereafter there is a considerable volume of correspondence, particularly between the respective legal advisors to ABC and VRT. As I understand the progress of the principal dispute, there is now an action on foot in the Supreme Court of Victoria by ABC against VRT. This action is an originating motion which seeks declarations related to the principle matters in dispute. Thus, litigation in relation to this dispute is not just anticipated but is underway. As shall be discussed, the contested documents relate to this dispute, and the overwhelming majority relate to legal advice given in relation to it. It is against this background that ABC seeks access to various documents.

9 VRT has granted access to some documents. The documents remaining in dispute number 19. Of these, an exemption is claimed in relation to part of one document pursuant to s.30 of the Act. I shall refer to that document as "Document 4". In relation to the remaining 18 documents, exemption is claimed pursuant to s.32 of the Act and I shall refer to these collectively as "the privileged documents", simply because it is the allegation of legal professional privilege which forms the basis of the asserted exemption.

10 I shall deal with the two categories of document in turn. I have had the opportunity to examine all disputed documents.

11 I shall not set out s.30 in detail. Suffice to say that it is a section which grants exemption to documents described as internal working documents relating to the deliberative process.

12 All of document 4 has been released, save for part of one sentence which has been blocked out. The words that have so been blocked out are those following the comma in the sentence adjacent to the second-last bullet point.

13 In order to succeed in relation to this exemption, VRT must satisfy me that granting unrestricted access to this document would disclose matters in the nature of opinion, advice or recommendation prepared by an officer, or consultation or deliberation that has taken place between officers, in the course of or for the purpose of the deliberative process. It must also satisfy me that granting unrestricted access to the document would be contrary to the public interest.

14 VRT has made written submissions in this regard and relies upon the witness statement, adopted on oath, of Mr Lou Cicchelli, its Commercial Services Manager, who is also involved in reviewing FOI applications.

15 In my opinion, the brief arguments advanced by Mr Gronow are correct. It has been submitted on behalf of VRT that the phrase deleted from the document sets out the author's opinion as to steps likely to be taken in the future by a third party, and the author had no authority to express a view on behalf of that third party. I agree that this is in itself no basis for an exemption. The document, the balance of which has been disclosed, may well be an email from one officer of VRT to another. However, speculation in relation to possible conduct by a third party contained in such a document does not, in my opinion, provide the basis for granting an exemption and does not discharge the burden of proof carried by VRT.

16 Further, whatever may be the situation in relation to s.30(1)(a), I am certainly far from satisfied that the disclosure of the disputed part of this document would be contrary to the public interest. In my opinion, there is simply no evidence to support such a conclusion. I reject the argument that releasing this document, in the context of this case, is likely to lead to confusion or unnecessary debate or that, again in the context of this case, it is somehow contrary to the public interest to release the document because it contains speculation rather than a decision. Put simply, it seems to me that VRT has fallen a long way short of discharging its burden of proof in this regard.

17 Accordingly, in relation to Document 4, my order is that ABC should have access to the document in its entirety.

THE PRIVILEGED DOCUMENTS - S.32 EXEMPTIONS

18 These documents, which I shall deal with collectively for the purposes of discussing general principles and arguments, are very much at the core of this dispute. A series of written submissions, provided by Mr Gronow and Mr Smale of Counsel on behalf of VRT, (including a third response by Mr Gronow), focus almost entirely upon this issue.

19 S.32(1) of the Act reads as follows:-

"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."

Accordingly, much of the argument in relation to this exemption was centred upon the meaning and nature of legal professional privilege and the circumstances in which it operates or is waived.

20 Of the 18 documents in this category, 17 are, as described in the Schedule of Documents, communications between VRT and its solicitors, Deacons. The remaining document is a communication between Mr Siggins, Manager Sales and Acquisitions, VRT, to a person in Legal Services, Director of Public Transport. That person is described in Mr Cicchelli's adopted statement as an "in-house" legal advisor. Thus, each document is a communication between VRT and a legal advisor and I am satisfied that each involves, or is related to the railway, the land in dispute, the relevant legislation and the like.

21 Against that background, I shall now deal with the arguments advanced by each party in turn. Whilst appreciating that VRT has the onus, I shall, for the sake of simplicity, deal firstly with the submissions made by Mr Gronow on behalf of ABC.

22 The documents would not be privileged in court proceedings. This is so, firstly, because they were never so privileged, due to their being integral to the making of, and reasons for, a review of an administrative decision. In this regard, reference is made to various authorities, including Lovegrove Turf Services Pty Ltd and Anor v Minister for Education (2003) WASC 213 and Setterfield v Minister for Education (unreported, AAT, Judge Rowlands, 28 June 1985).

23 From numerous letters placed in evidence, it is clear that the advice received by VRT has been integral to its decision-making and conduct in relation to the railway. Particularly in a situation where the reasons for its decisions have not been disclosed, it is unfair and inconsistent for it to refer to the fact that it has such legal advice and that it is relying on it, but then to maintain privilege in relation to it. Various authorities are referred to in this regard.

24 Secondly, any privilege has been waived or lost, due to the way in which VRT has sought to rely on the documents. It has engaged in partial disclosure of its legal advice, and the alleged affect of that advice in its dealings with ABC and others. In particular, reliance is placed upon two letters from VRT to ABC in which reference is made to the legal advice obtained, and upon a memorandum and letter from VRT to the relevant Minister in which reference is also made to that legal advice. Furthermore, reliance is placed upon a letter of 2 July 2001 from Deacons to ABC, to which is annexed a considerable portion of the advice of Deacons to VRT. However, it is an edited advice. All of this constitutes unfairness. ABC is entitled to see the whole of the disputed document so that it can fully understand and test any decision and the reasoning behind it.

25 Thirdly, and alternatively, the documents are not privileged because they have been associated with an attempt to subvert or evade the operation and intent of the Construction Act. In other words, the claim of privilege can be resisted if there are reasonable grounds for believing that the communication in question for which privilege is claimed is made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest - see Australian Federal Police v Propend Finance (1997) 188 CLR 501. It is apparent from various items of correspondence placed in evidence that VRT is seeking to avoid the operation of the Construction Act, as amended, and will not return the subject land without obtaining a large payment for it. This submission is strengthened by VRT's refusal to consider matters which it should and its failure to provide reasons.

26 Finally, reliance is placed upon s.50(4) of the Act - the public interest "override". A number of grounds are relied upon in this regard, including general openness and accountability of agencies and of the Government, with particular interest in dealings with land, and fair dealing generally.

27 Mr Smale summarised the case for VRT as follows:

Each of the disputed documents are documents that are protected by legal professional privilege. Each records confidential communications between VRT and its legal advisors, the dominant purpose of which is the getting or receiving of legal advice. If that be so, the only issue is whether the communications, the subject of the claim of privilege, were made to further an illegal or improper purpose, and whether, by implication, VRT has waived privilege, and if so, to what extent. VRT denies that there has been any such waiver or that there is any ground for alleging an illegal or improper purpose.

28 Firstly, unlike the situation in Lovegrove, the situation here is not one of a judicial review of an administrative decision. The decision or decisions referred to in the present case are not reviewable administrative decisions subject to judicial review under the Administrative Law Act 1978 and there is no obligation upon VRT to provide reasons in accordance with that Act. To give effect to the approach in Lovegrove in a situation where there is no reviewable administrative decision which expressly incorporates the legal advice under consideration would have the effect of completely removing legal professional privilege as a ground for exemption under the Act.

29 In relation to the limited disclosure of the advice given by its solicitors to VRT, considerations of fairness, including the capacity to mislead or to create misunderstanding, must be considered. Various authorities are referred to in that regard. Here there is no unfairness. The rationale for implied waiver, as set out in Great Atlantic Insurance Co v Home Insurance Co (1981) WLR 529 is inapplicable in the context of the Act where the documents alleged to be privileged can be examined by the Tribunal, which can then decide the question of fairness. Furthermore, by attaching the edited advice to a letter to ABC, Deacons were doing no more than advising ABC's solicitors as to their views in relation to a contentious matter. There is nothing to suggest that there is something inconsistent in the part of the advice which has been removed as compared to the general thrust of the advice which has been disclosed, or as compared to the references to the disclosed or inferred advice in other correspondence. It is not suggested that the removal of part of the advice has led to a misleading impression or has the capacity to create a misunderstanding. Further, the answers given by VRT to ABC are clearly intelligible, even if ABC does not like them.

30 There is no substance in the allegation that the communications are not privileged because they have been obtained for some improper purpose, namely the avoidance or subversion of the operation of a statutory instrument. It is clear on the face of the documents that they were obtained for the purpose of enabling VRT to be advised as of the true construction of the statute and as to how to respond to claims made pursuant to it. The proper construction of the legislation is a matter squarely raised in the parallel Supreme Court proceedings.

31 Finally, it would be contrary to the public interest to give access to the disputed documents. Legal advice passing between high-level officers should not be released to the public. Such legal advice should be able to be given in a candid, and at times, critical manner. This may not occur if it is known that the advice may be released in public.

32 In my opinion, the submissions made by Mr Smale on behalf of VRT are correct and the documents in dispute are exempt documents pursuant to s.32(1) of the Act.

33 In so finding, I am dealing with the documents on a collective rather than an individual basis. It seems to me that each of the contested communications was between VRT and its legal adviser and was made for the dominant purpose of the giving or obtaining of legal advice or the provision of legal services. It may be that part or all of some of the documents are somewhat routine. However, they all seem to me to fall under the general umbrella of documents which are privileged. In any event, the matter was argued largely on the basis of general principles, and no application was made in respect of the operation of s.25 of the Act. Even if it had been, it seems to me that all the documents in dispute are either privileged or they are not, and I am not finding that there has been any waiver in relation to part or all of any of them.

34 I have come to this conclusion for the following reasons, which shall be discussed under a series of headings.

35 As earlier stated, this case necessitates the consideration of some general principles relating to legal professional privilege. In that regard, I refer to the following passages from the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Daniels Corporation International Pty Ltd and Anor v ACCC (2002) HCA 49:-

"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 ...

Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection and the giving of evidence in judicial proceedings ...

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."

36 Thus, it is to be borne in mind that the High Court of Australia has emphasised the importance of legal professional privilege as an immunity. It is not lightly to be swept aside. Of course, it can be waived directly or by implication.

37 In the present case, the documents in dispute, if disclosed, would reveal communications between a client and its lawyer, made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. In my opinion, the documents in dispute fall into the category of documents the production of which can be resisted unless it can be found that there has been a waiver of privilege, or unless an exception, such as s.50(4) of the Act, applies.

38 I shall deal with the arguments that have been advanced in turn.

39 This is the term used by Mr Gronow in his submissions in order to describe his argument based upon the decisions in Lovegrove and in Setterfield.

40 In my opinion, there has been no such waiver in the present case. ABC initiated enquiries by what could be described as a letter of demand from its in-house counsel on 18 August 1999. This provoked both a stream of correspondence and the obtaining of legal advice in relation to a commercial situation. The legal advice has been relied upon by VRT in relation to decisions (or non-decisions). This situation seems to me to be considerably removed from that described in Lovegrove, which dealt with an administrative decision relating to the tender process for work available through a Government department. I am of the view that the submissions of Mr Smale are correct in this regard. I also agree that, if that particular approach were adopted in cases such as the one presently before the Tribunal (a decision by an agency concerning a commercial matter involving, in essence, only one other party), s.32 of the Act would, in most cases, be rendered useless. All cases concerning the operation of the Act and with which I have dealt have involved, in some form or another, an administrative decision. Many applications under the Act will be related to administrative decisions. Whilst obviously I have not looked at each of the multitudinous rulings made in relation to the Act, it is fair to say that the vast majority would seem to relate, in some way, to administrative decisions. Many of these are decisions which are not subject to judicial review. I agree with the submission of Mr Smale that to apply the remarks in Lovegrove to such decisions, and to the decisions (or non-decisions) in the present case, could have the effect of at least substantially abrogating legal professional privilege as a ground of exemption under the Act. Arguably, s.32 would be reduced or eliminated in a fashion not envisaged by the legislature.

41 Again, for reasons of convenience, I have selected the title given to this argument by Mr Gronow. In my view, such waiver does not exist.

42 Firstly, and in the context of the nature of the dispute in this case, I attach no significance to phrases such as, "Vic Track has been acting on legal advice from the beginning in this matter", or to similar statements referring to the obtaining of advice. Such statements do not seem to me to constitute a waiver. It is quite apparent that each side has obtained legal advice in relation to this commercial dispute. Communications reporting this do no more than state the obvious. To state that VRT's lawyers do not accept that ABC has established a claim that entitles it to receive the land without payment is in no way inaccurate or misleading. Furthermore, in the context of this case, I fail to see how any unfairness flows from the making of such statements without the disclosure of the precise advice.

43 This seems to me to be even more the case in relation to the forwarding by Deacons to ABC's solicitors of the edited advice which they had provided to their client. That letter sets out, in considerable detail, the legal advice of Deacons, which advice bears directly upon issues which are in dispute. I have had the opportunity of reading the entire letter of advice. Without "letting the cat out of the bag", I can say that the portion which has been removed is comparatively small and, in my opinion, its exclusion does not lead to any misleading impression or possible misinterpretation or misunderstanding of the overall tenor of the advice.

44 I do not see any unfairness which results from the editing of the document, and I agree that the concept of fairness is important in the overall consideration of partial disclosure of a document. I agree with the submissions of Mr Smale in this regard. I also agree that, as argued, solicitors in disputes such as this (or indeed in many disputes) routinely advise each other as to their views upon contentious legal points and, hopefully, the views expressed to an opponent would coincide with the general theme of advice given to the client. However, to say that privilege is thereby waived and that the advice, "warts and all", is no longer privileged seems to me to be going beyond the bounds of even the most liberal approach to privilege and waiver.

45 In summary, I am of the view that no waiver, based upon reliance and disclosure, has occurred in the present case.

46 Again, I am of the view that VRT has discharged the burden of proof in relation to this argument in favour of exemption. I struggle to find any foundation for ABC's argument. At the centre of this dispute lie questions of statutory interpretation. It could just as easily be argued that the whole purpose of VRT obtaining the advice is to give proper operational effect to the statute. The fact that it has obtained legal advice as to the meaning of the Construction Act, and that advice is contrary to the views held by ABC and its advisors, does not mean that it is attempting to avoid or subvert the operation or purpose of the Construction Act. VRT has made its position clear, even to the point of disclosing part of the legal advice which it has received. I am not persuaded by arguments based upon a refusal to consider matters or to provide reasons. In relation to this argument concerning waiver, I prefer the submissions advanced by Mr Smale, and I find that no waiver has occurred.

CONCLUSION RE S.32 EXEMPTIONS

47 In summary, I find that VRT has discharged its onus of proof in relation to s.32(1) of the Act. I am satisfied that the 18 documents in dispute are exempt because they are of such a nature that they would be privileged from production in legal proceedings on the ground of legal professional privilege.

SECTION 50(4) - PUBLIC INTEREST "OVERRIDE"

48 I am not of the view that the relevant documents, having been found to be exempt, should be disclosed pursuant to s.50(4) of the Act. Nothing which has been presented convinces me that the public interest consideration is of such strength as to override the factors that confer exempt status. Indeed, it seems to me that the contrary is the position, and that it is in the public interest that access to the documents should not be granted.

49 I arrive at that conclusion for a number of reasons. It seems to me that the community in general benefits from agencies being able to obtain frank advice on legal matters, and from both the agency and the provider of the advice having some confidence that the advice will not be made public. It is not in the public interest that agencies receive inhibited or meaningless advice. That is particularly so in a case such as this, which is, in essence, a commercial dispute. It is also particularly so when the dispute could almost be described as a private one between two parties, but involving public land. It is desirable that VRT's solicitors be able to advice it fearlessly and accurately, and within the protection of professional legal privilege. It is also to the benefit of the community that, whilst each case must be considered on its merits, those giving legal advice to agencies should usually be able so to do in the confidence that they are protected by such privilege.

50 In summary, I am of the view that VRT has discharged the onus upon it, and that it has satisfied me that, even after considering the operation of s.50(4), the documents should remain exempt.

51 Accordingly, the orders which I make are as follows:-

1. The Respondent should grant to the Applicant access to Document 4 in its amended Schedule of Documents Exempt Under s.30 of the Freedom of Information Act 1986. The application is otherwise dismissed.

Adelaide Brighton Cement Limited v Victorian Rail Track [2004] VCAT 930

At a glance

Court

Decision date

Source

Judgment (65 paragraphs)

Adelaide Brighton Cement Limited v Victorian Rail Track [2004] VCAT 930 (20 May 2004)

Parties

Cases Cited (1)