Banovec v Secretary, Department of Justice

NCAT Administrative and Equal Opportunity|2014-08-27

reasons for decision 1Mr Banovec issued a summons to the Secretary, Department of Justice on 12 April 2014 seeking records relating to a complaint of victimisation he made under the Anti-Discrimination Act 1977 (NSW). The respondent refused to produce certain documents on the ground of client legal privilege. Mr Banovec seeks a ruling from the Tribunal that the claim for privilege is not valid and that the documents be produced. I have decided to refuse that application and uphold the respondent's claim for privilege. 2The documents to which Mr Banovec seeks access (the subject documents) are a letter from Mr Matenga, General Manager, Wellington Correctional Centre Cluster to Ms Singer, Legal Officer, Professional Standards Branch with the Department of Justice dated 6 September 2013 and six attachments to that letter. The attachments are letters from employees of the respondent giving their version of what happened during an incident involving Mr Banovec on 31 July 2013 and 3 August 2013. 3These documents are relevant to a complaint of victimisation under the Anti-Discrimination Act 1977 (NSW) that Mr Banovec lodged with the President of the Anti-Discrimination Board on 20 August 2014. The complaint alleged that on 26 July 2013, 31 July 2013 and 3 August 2013 officers of the respondent prevented him from using work computers to prepare and print legal material.

The law 4The Tribunal is not bound by most of the rules of evidence but is bound by certain provisions in the Evidence Act 1995 (NSW) relating to privileges: Civil and Administrative Tribunal Act 2013, s 38(2) and s 67. In particular, the Tribunal is bound by Part 3.10 of Chapter 3 of the Evidence Act. Sections 118 and 119 are the relevant provisions: Legal advice 118 Legal advice 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. Litigation 119 Litigation 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 between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party. 5Although s 118 and s 119 apply only to the adducing of evidence, s 131A of the Evidence Act extends the application of those provisions to a summons to produce documents or give evidence. 6There are two main elements of s 118. Firstly, the documents to be disclosed must be confidential communications between the client and a lawyer or the contents of a confidential document prepared by the client, lawyer or another person. Secondly, the communication must be made or the document prepared for the dominant purpose of the lawyer providing legal advice to the client.

The evidence 7The Tribunal is not bound by the rules of evidence but should only make findings on the basis of relevant and probative evidence: Civil and Administrative Tribunal Act, s 38(2). 8The respondent must make out its claim on the balance of probabilities. The respondent did not provide any evidence, other than the subject documents and other relevant material on the file, to support its claim for client legal privilege. Mr Banovec submitted that in the absence of any specific evidence the respondent's claim should fail. 9Courts have emphasised the importance of evidence when making a claim for client legal privilege: Bailey v Department of Land and Water Conservation [2009] NSWCA 100 at [40]. While a mere assertion of client legal privilege will be insufficient in some cases, in others the documentary evidence will be sufficient and there will be no need for the solicitor or the client to provide affidavit evidence. That is the case in these proceedings. 10Section 133 of the Evidence Act allows the Tribunal to inspect the documents for the purpose of determining the claim for privilege. I inspected the subject documents. I also took into account other documents over which the respondent claimed privilege but which were not the subject of these proceedings including an email from Ms Singer to Judith Ingram dated 14 August 2014. Other relevant documents which I took into account were Mr Banovec's complaint to the Anti-Discrimination Board and the President's Report referring that complaint to the Tribunal.

Factual findings 11On the basis of the documents described above, I find that the respondent became aware of Mr Banovec's complaint to the President of the Anti-Discrimination Board on or about 14 August 2013 even though the Anti-Discrimination Board did not receive the complaint until 20 August 2013. The complaint itself was dated 3 August 2013. On 14 August 2013 Ms Singer sent an email stating, in part, that Mr Banovec had "told the Tribunal that he had lodged another claim of victimisation in respect of being refused access to computer/photocopying etc.". 12In his letter, Mr Matenga refers to Ms Singer's email dated 2 September 2013. Although Mr Matenga states in the letter that Ms Singer's email is enclosed, it was not enclosed in the documents produced to the Tribunal nor was it in evidence. Ms Singer asserted that it was to the same effect as the email that was in evidence dated 14 August 2013 which referred to the fact that Mr Banovec had lodged a complaint and asked for "full details concerning this matter". I accept Ms Singer's evidence, even though it was made from the bar table. It accords with the content of Mr Matenga's letter.

Reasoning 13Ms Singer is an "an Australian lawyer" or an "employee or agent" of an Australian lawyer and thus meets the definition of a "lawyer" in s 117 of the Evidence Act. In his text, Uniform Evidence Law, Stephen Odgers notes that the term "legal advice" has been construed broadly to include advice as to what should prudently and sensibly be done in the relevant legal context: Stephen Odgers, Uniform Evidence Law, (10th ed 2012, Thomson Reuters) at 647. Mr Banovec suggested that Ms Singer was not acting in a legal capacity and was not sufficiently independent to be regarded as the respondent's lawyer. While courts have held that there are circumstances where in house lawyers lack the necessary independence, in this case there is nothing to suggest that Ms Singer's request for "full details concerning this matter" was made in any other capacity than as the respondent's independent lawyer. The request was not merely for information, nor did it have an administrative purpose. It was made in response to a complaint under the Anti-Discrimination Act. 14Mr Banovec submitted that the purpose of the request that the officers provide their account of the incident involving Mr Banovec on 31 July 2013 and 3 August 2013 was to record the events which occurred on those days. In his view the accounts were prepared in accordance with departmental policy on recording of minor and major incidents as part of the day to day management of Wellington Correctional Centre. He does not agree that the documents were prepared for the dominant purpose of providing legal advice. 15The relevant departmental policy to which Mr Banovec referred was not in evidence. Even if there is such a policy, the timing of the events does not support Mr Banovec's contention. Ms Singer became aware of his complaint of victimisation on or about 14 August 2013 and wrote an email requesting "full details concerning this matter" on the same day. When no response was received, she forwarded a second email dated 2 September 2013 in similar terms. The letters setting out the witnesses' accounts of the incidents on 31 July 2013 and 3 August 2013 all bear dates between 2 September and 5 September 2013. Those letters are attached to Mr Matenga's response to Ms Singer dated 6 September 2013. In the absence of any evidence to support his contention, I am not satisfied that the documents were prepared in accordance with departmental policy or that the officers would have had to write the reports even if Mr Banovec had not made a complaint to the Anti-Discrimination Board. 16As the respondent's in house lawyer, she sought the information in the subject documents in order to give her client legal advice. I am satisfied that the subject documents were prepared for the dominant purpose of Ms Singer providing legal advice to her client about Mr Banovec's complaint of victimisation. Having come to that view there is no need to consider whether the respondent also has a valid claim for privilege under s 119 of the Evidence Act. 17The respondent applied for costs under s 60 of the Civil and Administrative Tribunal Act. The general rule is that each party pays his or her own costs. Costs may only be awarded if there are "special circumstances" warranting an award of costs. The respondent submitted that Mr Banovec's application has no tenable basis in law and that that justified costs being awarded against him. While Mr Banovec's claim was weak and has been rejected, it was not untenable. I am not satisfied that the lack of strength of his claim is a special circumstance warranting an award of costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2014

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