Ampcontrol Limited v Department of Planning, Industry and Environment - [2020] NSWCATAD 98 - NSWCATAD 2020 case summary — Zoe

NSWNSWCATAD

Ampcontrol Limited v Department of Planning, Industry and Environment

[2020] NSWCATAD 98

NCAT Administrative and Equal Opportunity|2020-02-12

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2020-02-12

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

The applicant's case

The applicant submits that the evidence of the respondent shows failures to conduct an adequate search, in particular to use adequate and consistent search terms. The applicant says that each staff member searched using their own methodology and terms which made the searches unreliable. The applicant points to evidence of Mr Linnane, Director of Regulatory Programs. Mr Linnane says he oversaw the searches conducted in response to the application. His affidavit describes the various systems on which information is stored within the Department and the searches conducted by the various staff members.
Instances in this affidavit relied on by the applicant include: 1. There are differences between the search terms used according to the evidence and those which the decision says were used; 2. In searching their emails, two staff used plural terms such as "design orders', "gas detectors" and others used the singular versions of those terms. The applicant says singular terms should have been used; 3. Some staff used terms in searching their emails which other staff did not use; 4. Some email searches were inadequate, for example one staff member only searched for the word "order" and another staff member searched only for "Ampcontrol"; 5. Only one staff member searched in their personal drive on their computer; 6. One staff member who searched only for "Ampcontrol" in their emails produced no results, but the applicant has emails sent to that staff member (Mr Burns) which contain that word. 7. The evidence does not show that a particular file SF/18/66242, referred to in the decision, was searched. 8. An individual (Ms Drain) at the Mines Safety Technology Centre (MSTC) who was allegedly consulted over the Order, did not conduct any searches.
In addition the applicant says documents which it would have expected to have been in the respondent's possession were not located. These include internal meeting minutes, stakeholder engagement records, and industry feedback on the proposed Order which were referred to in other documents. The applicant relies on the evidence of the respondent that initially the Department did not consider "stakeholder engagement" included correspondence with the applicant. It later revised this position and conducted relevant searches.

[3]

Consideration

The applicant has the onus of establishing, firstly, reasonable grounds to believe that the requested information exists and is held by the agency.
The information in question is described by the applicant as internal meeting minutes, stakeholder engagement and industry feedback on the Order.
With regard to internal meeting minutes, the applicant produced a list of "Missing Documentation" which listed the references to meetings it claimed should have been minuted. As to items 1, 3, 5 and 6, I am not satisfied that these references establish that any meeting actually occurred. Items 2, 4, and 7 do refer to meetings but these may have been meetings which, as submitted by the respondent, did not produce minutes.
The only available evidence that any engagement with stakeholders and industry was conducted other than with the applicant was a request in Document 27 (quoted by the applicant) by a Ms Brown to the MSTC saying it "it would be helpful to us to see the industry feedback just in case it raises something". I infer from this that Ms Brown expected the MSTC to have records of such feedback, but there is nothing to show that it existed and the applicant did not criticise the terms used by MSTC staff in their searches. The search terms they used appear quite broad and included "gas", "monitor" "design order" and "gazette", therefore it is more probable than not in my view, that if they held industry feedback on the order it would have been located.
There is evidence that the respondent's Strategy and Engagement Team who were involved in the creation of the Order also conducted searches and searched for "gas monitor" and "design order" in CM9 files, emails, and Mr Kurtz's personal folder. The applicant did not criticise those search terms used. The only criticism was that only Mr Kurtz searched his personal folder on his computer desktop. However that may be because he alone kept files there whereas records would normally be kept in the Department's record management and storage systems. This alone does not suggest that any relevant information exists in that part of the agency.
I do not think I can draw a conclusion that the information existed from a difference in the search terms listed in the evidence and the decision as the applicant submits. There is no logical connection between those matters.
The applicant's main criticism applied to email searches, but this relies on assuming that the information sought would have been stored in emails, and only applies to the emails of two out of a total of nine staff.
On the basis of the available evidence I am not satisfied that the relevant information existed and was held by the respondent. It is therefore not necessary to consider if its search efforts were adequate.

[4]

Legal professional privilege

Clause 5 of Schedule 1 creates an overriding public interest consideration against disclosure for "information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege)".
Section 118 of the Evidence Act 1995 (NSW) describes the test for determining whether legal advice is privileged, which the Tribunal has held is effectively the same as under the common law (Transport for NSW v Robinson [2018] NSWCATAP 123 at [43]: Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
The "dominant purpose" is the prevailing or paramount purpose (AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 at [44]).
A lawyer-client relationship must exist for the communication or document to be privileged under s 118 and the communication or document must be confidential. The burden of establishing that is on the respondent (AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [25]). The respondent relied on an affidavit of Madeleine Thomas, the Acting Executive Director, Planning, Environment and Resources in the Legal and Governance Division of the Department.
Ms Thomas stated Departmental legal advice on draft documents is often summarised on the draft in italics by the Division's legal officers and it is understood that such advice is provided on a confidential basis. She stated that Mr Flint, the Manager Regulation and Development in the Strategy and Engagement Branch, submitted a request for legal advice in relation to the Plant Registration Policy Document in September 2018. A further request for advice was made by Mr Kurtz in January 2019.
[NOT FOR PUBLICATION]
Legal professional privilege may apply to legal advice provided by an employed government lawyer to another employee or branch of government, provided that the relationship is a professional relationship with an independent character notwithstanding the employment (Waterford v The Commonwealth of Australia (1987) 163 CLR 54). In that case it was said: "The questions raised under this head of the argument are not without difficulty. The fact that the Attorney-General was also the Minister administering the Act might create difficulty in a particular case in determining the purpose or purposes attaching to a document. Matters of policy and legal advice may be intermingled in the one document as appears to be the case with document numbered 29, which was made available to the appellant prior to the hearing of his appeal to the Federal Court. However, we do not think that the allegation of error of law by the Tribunal can be sustained. The appellant's submission fails to appreciate that the sole purpose test is a test that looks to the reason why the document was brought into existence. If its sole purpose was to seek or to give legal advice in relation to a matter, then the fact that it contains extraneous matter will not deny to it the protection of the privilege. The presence of matter other than legal advice may raise a question as to the purpose for which it was brought into existence but that is simply a question of fact to be determined by the Tribunal and its decision on such a question is final…"
The applicant disputed that certain comments by the lawyers constituted legal advice for the purpose of clause 5 of Sch 1, in reliance on the decision of the Court of Appeal in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84.
In that case the Court of Appeal held that regard must be had to the context when considering whether a communication to government with regard to drafting of proposed laws or their operation or application, was for the dominant purpose of advice or rather for operational, administrative or policy purposes: "…While, as I have earlier stated, it might be accepted that legal professional privilege can attach to communications made on the operation and application of laws, proposed laws and their drafting, it is essential to ensure, particularly in the government context, that the purpose for which a document was brought into existence was one which related to legal advice as opposed to operational, administrative or policy matters. As Lord Scott emphasised in Three Rivers (No 6) (at [38]) in order for privilege to apply advice must be given in 'the relevant legal context'. 95 In my view the Appeal Panel's statement (at [39]) concerning the administration of justice was an uncontroversial reference to the rationale of legal professional appeal [sic] (assisting and enhancing the administration of justice) to which the authorities refer. The Appeal Panel accepted (at [53]) that legal advice privilege could attach to advice given in connection with proposed laws and their drafting. It was not satisfied on its examination of the disputed documents, and in the context in which they were prepared, that the documents were given in that context or for such purposes. (per McColl JA, Handley and Hodgson JA agreeing [ 94-5])."
In considering the documents below I have considered whether the advice relates to legal matters rather than administrative, operational or policy matters.
The parties helpfully agreed on a schedule of documents in dispute. I have dealt with those documents below. The document numbers used below follow the numbering in the schedule and the confidential bundle. The documents are grouped according to their history and context as per Ms Thomas' affidavit and the applicant's submissions.

Parties

Applicant/Plaintiff:

Ampcontrol Limited

Respondent/Defendant:

Department of Planning, Industry and Environment

Legislation Cited (5)

Administrative Decisions Tribunal Act 1997(NSW)

Administrative Decisions Review Act 1997(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Evidence Act 1995(NSW)

Government Information (Public Access) Act 2009(NSW)

Cases Cited (6)

Whether there are reasonable grounds to believe that the requested information exists and is held by the agency

The applicant's challenge to the decision that no more information within the scope of the application is held by the agency will be determined by: 1. whether there are reasonable grounds to believe that the requested information exists and is held by the agency and, if so, 2. whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances of a particular case. (Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, at [19], as applied by this Tribunal in relation to the now repealed Freedom of Information Act 1989 in Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18] and to the current GIPA Act in Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5).
As held by the Tribunal in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 at [19]: "All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s 39 of the Administrative Decisions Tribunal Act 1997 (NSW)."
The applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists which has not been supplied. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances (Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCAT 186 at [33]-[34]).

(1987) 163 CLR 54

Cited By (1)

Alam v Insurance and Care NSW