Barrett v Department of Planning, Industry and Environment

The GIPA Act

1. Section 5 of the GIPA Act provides a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. Section 12(1) of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information.
2. Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 of the GIPA Act. Relevantly, cl 5(1) of Sch 1 to the GIPA Act provides: "It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege."
3. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision.

Material filed with the Tribunal

1. The parties each filed written submissions. The applicants attached copies of the following documents to their submissions: Code of Ethics and Conduct for NSW government (Code); the respondent's Code of Ethics and Conduct dated November 2017; Minutes of a meeting on 11 March 2019 regarding Riverstone East Precinct (Stage 3); an extract from a document headed "Water Cycle Management Report Riverstone East"; an extract of [32.120] regarding "Entry of Water" from an undated version of the Law Handbook; emails between the applicant and the respondent (and internal emails between officers of the respondent) between 20 March 2020 and 30 April 2020, and an extract from Vol. 97 of the Yale Law Journal.
2. In addition to written submissions, the respondent filed an affidavit dated 24 April 2020 of Leigh Simpkin, Senior Legal Officer, Department of Planning, Industry and Environment. Copies of the information released to the applicants were also filed. Pursuant to s 66(3) of the Civil and Administrative Tribunal Act 2013 (NSW), the respondent filed with the Tribunal, on a confidential basis, complete (that is, unredacted) copies of documents 15 and 17.

Representation of the applicants

1. At the case conference on 24 March 2020, the applicants indicated that they wished to have a person (other than a legal practitioner) represent them in the proceeding. The applicants were directed to make submissions in support of their position (including submission in respect of the matters contained in r 32(1) of the Civil and Administrative Tribunal Rules 2014 (NSW)).
2. No such submissions were received. The submissions filed by the applicants were signed by the applicants themselves. Accordingly, there is no need to determine the issue of representation that was raised at the case conference.

Evidence of Ms Leigh Simpkin

1. The affidavit of Ms Simpkin states (and I summarise and paraphrase): 1. The Legal and Governance Division forms part of the respondent and provides legal advice to the respondent. Ms Simpkin's role is based in this Division. 2. Ms Simpkin reports to the Director, Development and Resources. The Director, Development and Resources is required to be a solicitor and to hold a current practising certificate. Solicitors employed in the Directorate must also hold current practising certificates. 3. All requests for legal advice are received through the Director, Development and Resources. Work on the various legal advice requests is then allocated by the Director, Development and Resources. 4. Requests for legal advice are usually made through the completion of a "Request for Legal Advice form", which is approved by a senior officer of the relevant area or division of the respondent that seeks the advice. 5. Ms Simpkin's experience is that legal advice issued by the Legal and Governance Division is "commonly understood" to be provided (and received by the relevant area or division of the respondent) on a confidential basis. 6. In relation to documents 15 and 17: 1. On 10 April 2019, an agent acting for the applicants contacted an officer of the respondent (Departmental Officer) indicating that the applicants intended on commencing legal proceedings against the respondent due to concerns about flooding of a property owned by the applicants. 2. On 10 April 2019, the Director, Development and Resources emailed the Departmental Officer to seek instructions relevant to the scope of the legal advice. This email is document 17. 3. On 16 April 2020, the Director, Development and Resources allocated the work on the legal advice to Ms Simpkin. 4. On 30 April 2020, Ms Simpkin emailed the Departmental Officer to clarify certain matters and to obtain instructions regarding the legal advice. This email is document 15.

Submissions of the applicant

1. The applicants' submissions included the following (and I paraphrase and summarise): 1. Legal professional privilege in documents 15 and 17 has been waived as follows by the respondent: 1. The Departmental Representative emailed an agent representing the applicants on 20 March 2020 and stated "I have previously advised during our meeting that we will digest the discussions had, and a response will be forthcoming … I am unable to advise of when a response will be provided now as we have referred the matter to our legal division for advice on what you have raised". 2. The Departmental Representative emailed an agent representing the applicants on 10 April 2020 and stated "… I will provide an update once I have further advice from the Department's Legal Division". 3. The Departmental Representative emailed Ms Simpkin on 30 April 2020 and stated (in response to receiving emails from the agent representing the applicants) "… I am hoping that any legal advice can be included in [the respondent's] response". 1. There was never any suggestion that the response that the applicants were expecting would be the subject of legal professional privilege. Rather, the emails outlined above indicate that the information would be provided to them. 2. The Code obliges officers of the respondent to (amongst other things) "uphold the law, institutions of government and democratic principles" and to "provide transparency to enable public scrutiny" (and these obligations are referred to as mandatory conduct). The respondent's refusal to disclose documents 15 and 17 is contrary to these obligations. 3. An article published in the Yale Law Journal (Vol. 97) at pp 1727 states that "[attorney-client] privilege should not be extended to governmental entities" and that it "does not serve the privilege's underlying goals and conflicts with the principles of open government". 4. The applicants anticipate that there may be adverse effects from development near a property they own, and the information is relevant to their interest in protecting this property or making a claim in respect of any damage that may arise.
2. The applicants did not challenge the evidence of Ms Simpkin in their submissions.

Submissions of the respondent

1. The respondent's submissions included the following (and I paraphrase and summarise): 1. The information in documents 15 and 17 is information of the kind described in cl 5(1) of Sch 1 to the GIPA Act and it is, therefore, to be conclusively presumed that there is an overriding public interest against disclosure of the information. 2. Sections 118(a) and 119 of the Evidence Act 1995 (NSW) (Evidence Act) deal with privilege in the context of legal advice and litigation, respectively, and both provisions apply a "dominant purpose" element. The phrase "dominant purpose" is the prevailing or paramount purpose (see AWB v Cole [2006] FCA 1234 at [44]). 3. Legal professional privilege extends to confidential communications between government agencies and their salaried officers where the communication was for the dominant purpose of obtaining or providing legal advice (see Waterford v Commonwealth (1987) 163 CLR 54). 4. A claim of privilege can be established by a lawyer's evidence about the circumstances surrounding the communication and inferences from the document itself (see Re Southern Coal Pty Ltd (Receivers and Managers appointed) (in liq) [2006] NSWSC 899 at [28]). 5. In some circumstances, examination of the relevant document will be sufficient to establish that the privilege exists (see Chamley v Sydney Children's Hospital Network [2013] NSWADT 197 at [32] and [38]). 6. The Departmental Officer requested legal advice in the context of an agent representing the applicants stating that the applicants were proposing to commence legal proceedings against the respondent. The legal advice was provided by Ms Simpkin, a solicitor. 7. Documents 15 and 17 are communications from solicitors employed by the respondent that seek information and/or instructions from the Departmental Officer for the purpose of providing legal advice relevant to the threat of litigation. The emails are confidential communications and disclosure of the information in the emails would reveal the nature of the legal advice that was requested. 8. There has been no waiver of privilege by the respondent. Section 122(3) of the Evidence Act refers to disclosures that may result in privilege being waived by, amongst other things, reference to disclosure of the substance of the relevant information. There has been no such disclosure by the respondent and there is nothing in the conduct of the respondent (such as disclosing to the applicants that legal advice was being obtained) that is inconsistent with maintaining privilege in documents 15 and 17.

Consideration

1. Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. The Tribunal has previously stated Betzis v Commissioner of Police [2020] NSWCATAD 71 at [31]: "The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of or against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information."
2. Clause 5 of Sch 1 to the GIPA Act provides for such a conclusive presumption if the information would be privileged from production in legal proceedings on the ground of legal professional privilege, unless the privilege has been waived. The Tribunal has tended to find that cl 5 of Sch 1 to the GIPA Act adopts the tests for the existence of legal professional privilege in the Evidence Act (see Larsson v Office of Environment and Heritage [2014] NSWCATAD 136 at [25], Saggers v Environmental Protection Authority [2014] NSWCATAD 37 at [26]) and Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121 at [13]).
3. I have reviewed documents 15 and 17. It is apparent from my review that: 1. Document 15 is an email from Ms Simpkin to the Departmental Officer that seeks confirmation of the scope of the advice requested and seeks information from the Departmental Officer regarding matters that are required for Ms Simpkin to provide the legal advice. 2. Document 17 is an email from the Director, Development and Resources to the Departmental Officer seeking clarification regarding the nature of the risks that should be considered in the legal advice.
4. There are a number of matters that need to be considered to come to a conclusion regarding documents 15 and 17 for the purposes of this application for review. I will consider each of these matters in turn.

Information created by employed solicitors

1. In Jackson v University of New South Wales [2019] NSWCATAD 224 at [102] the Tribunal stated: "… legal professional privilege equally applies to confidential communications between government agencies and their salaried legal officers, provided that there existed, at the time of the confidential communication, a relationship of lawyer and client and the requirements of ss 118 and 119 are otherwise satisfied: Waterford v Commonwealth [1987] HCA 25 (Waterford), (1986)-(1987) 163 CLR 54, at [4], Mason and Wilson JJ where their Honours said: 4 … [Whether], in any particular case, a relationship is such to give rise to the privilege is a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment."
2. I accept the evidence of Ms Simpkin that both she and the Director, Development and Resources are required to hold (and held at the times documents 15 and 17 were created) practising certificates entitling them to provide legal advice in NSW. From the evidence before me in this matter, the structure of the Legal and Governance Division (including the process for requesting legal advice and the allocation of legal work to a solicitor) reflects a structure to establish the necessary professional relationship between solicitors and their internal clients. Further, from my review of documents 15 and 17, the content of the communications is directed only to matters relevant to the provision of legal advice by a lawyer to such a client.

Confidential communication between lawyer and a client

1. Section 118 of the Evidence Act relates to communications and documents in the context of legal advice and, relevantly, provides: "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 … for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client."
2. Section 117 of the Evidence Act defines "confidential communication" to mean a communication made in such circumstances that, when it was made, the person who made it (or the person to whom it was made) was under an express or implied obligation not to disclose its contents, whether or not that obligation arises under law. Section 117 defines "confidential document" in substantially the same way.
3. While neither document 15 or 17 are marked "privileged and confidential" or marked with some similar statement, this is not determinative of the issue of confidentiality. What is required is a review of the content of the documents and the manner in which the documents were treated. I accept the evidence of Ms Simpkin that communications from officers of the Legal and Governance Division are treated as confidential. There is no evidence before me that suggests that documents 15 and 17 were not treated in accordance with this manner. Accordingly, I consider that documents 15 and 17 are confidential communications for the purpose of s 117 of the Evidence Act.

For the dominant purpose of providing legal advice to the client

1. In Chamley v Sydney Children's Hospital Network [2013] NSWADT 197, the Tribunal stated at [32]: "In some cases it will be obvious from an examination of the written communication itself that the dominant purpose of the communication was the provision of legal advice."
2. In my view, it is obvious from my examination of documents 15 and 17 that they are each a communication between a lawyer and a client about the legal advice requested by the Departmental Officer. On the evidence before me, the only purpose for which documents 15 and 17 were created was for providing advice to the Departmental Officer. The content of the emails is directed only to the Departmental Officer and relates to one matter, namely information and clarifications necessary to provide the legal advice. Accordingly, I consider that documents 15 and 17 are each for the "dominant purpose" of a lawyer providing advice to a client.

Waiver

1. The applicants submit that they knew that legal advice had been requested and that the respondent had indicated that it would disclose the legal advice to the applicants. I understand the applicants' position to be that, separately or together, this means that the respondent waived any privilege in documents 15 and 17.
2. The emails identified in support of the applicants' position indicate that legal advice was being obtained from the Legal and Governance Division of the respondent and that the legal advice was required in order for the respondent to provide a response to certain issues raised by the applicants. One email from the Departmental Officer to Ms Simpkin indicates that he "[hopes] that any legal advice can be included in that response".
3. In certain circumstances legal professional privilege can be waived by disclosure to a third party. Relevantly, subsections 122(2) and 122(3) of the Evidence Act provide: "(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if - (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party."
4. Disclosing the fact that a government agency has obtained (or proposes to obtain) legal advice is not, of itself, inconsistent action for the purposes of s 122 of the Evidence Act. In Osland v Secretary of the Department of Justice (2008) 234 CLR 275, the Victorian Government had disclosed in a media release that it had obtained legal advice and that the advice "recommended on every ground that the petition should be denied". At [46], the Court observed: "The conduct of the Attorney-General in issuing the press release and including in it certain information about the joint legal advice is to be considered in context, which includes the nature of the matter in respect of which the advice was received, the evident purpose of the Attorney-General in making the disclosure that was made, and the legal and practical consequences of limited rather than complete disclosure."
5. In this matter, the relevant context is that the applicants were seeking a response from the respondent on certain matters relating to risks to the applicant's property and having advised the respondent (through their agent) that the applicants were proposing to commence litigation against the respondent in respect of those same risks. The applicants were keen to hear from the respondent and it is in response to this eagerness that the respondent appears to have advised the applicants that legal advice was required and that the provision of the response would be dependent on receipt of the legal advice.
6. In the emails before me, the respondent has only disclosed that legal advice was being obtained. No information was provided to the applicants regarding the scope of the advice. As the advice had not been prepared at this time, no issue arises as to disclosure of the conclusions of the legal advice.
7. With respect to the email from the Departmental Officer indicating that he hoped the legal advice could be included in the respondent's response to the applicants, in my view, it could not be put higher than that officer's hope for future correspondence and perhaps a resolution to the matters raised. Further, the relevant email is an email from the Departmental Officer to Ms Simpkin not the applicants (the applicants became aware of the email through disclosure of material released to them) and was not an expression conveyed to the applicants at the time the advice was being prepared. The email from the Departmental Officer does not disclose anything regarding the scope, content or (expected) conclusions of the legal advice. Given this, the email does not amount to action by the respondent that is inconsistent with maintaining confidentiality in the legal advice.

The information would be privileged from production

1. The applicants seek the disclosure of two communications between a lawyer and client. In Re Southland Coal Pty Ltd (Receivers and Managers appointed) (in liq) [2006] NSWSC 899 at [14], Austin J identified certain principles about legal professional privilege. Two principles relevant to whether the information would be privileged from production included the following at [14(d)] and [14(e)]: "Section 118 protects certain confidential communications and the contents of confidential documents made or prepared for the dominant purpose of a lawyer providing legal advice to a client. In this context, "legal advice" is understood in a pragmatic sense. In General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at [77] to [78], McColl JA quoted, evidently with approval, the observation of Taylor LJ in Balabel v Air India [1988] Ch 317, at 330, that "legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context. … Under both s 118 and s 119 the evidence is not to be adduced if adducing evidence would result in disclosure of certain confidential communications or the contents of certain confidential documents. The question is whether what is disclosed by adducing the evidence explicitly reveals the confidential communication or the contents of the confidential document, or supports an inference of fact as to the content of the confidential communication or document, which has a definite and reasonable foundation".
2. Documents 15 and 17 are each a "confidential communication" for the purpose of the Evidence Act, as outlined above. Both documents seek information necessary for the provision of the legal advice. Disclosure of documents 15 and 17 to the applicants would reveal the matters that the legal advice was required to address, including matters relevant to risks arising for the respondent. In my view, such disclosure would be "privileged from production" for the purposes of cl 5(1) of Sch 5 to the GIPA Act.

Other matters

1. The applicants have identified the Code, the extracted text from the Yale Law Journal and their interest as owners of a property that they fear may be adversely impacted by, in part, actions of the respondent, as further bases on which documents 15 and 17 should be disclosed to them.
2. It is apparent that the applicants hold concerns for their property and they wish to understand all matters relevant to these concerns. However, the GIPA Act must be applied on its terms and as passed by Parliament. The key provisions for the purposes of this matter are s 14(1) of the GIPA Act and cl 5 of Sch 1 to the GIPA Act.
3. Further, Courts have rejected arguments that the objects of legislation relating to the provision of government information means that exemptions such as legal professional privilege should be narrowly construed. Rather, the relevant legislation is to be considered on its terms and "construed without any prior inclination to construe it narrowly, nor any prior inclination to construe it broadly" (see Howell v Macquarie University [2008] NSWCA 26 at [48]).
4. As set out above, if the information in dispute is information of the kind described in Sch 1 to the GIPA Act, then the conclusive presumption applies and operates to prevent the disclosure of the information. The result of this finding also means that the Tribunal is not permitted to carry out the balancing exercise required by s 13 of the GIPA Act (and that balancing exercise could require matters such as personal factors of the applicants to be considered in determining whether information should, on balance, be disclosed).
5. The applicants also submit that the respondent did not advise them that the information they were expecting would be the subject of legal professional privilege. Even if this were the case (I do not have evidence before me to form a view one way or the other) it would not be relevant in this matter. Clause 5(1) of Sch 1 to the GIPA Act and the Evidence Act sets out what information is subject to the conclusive presumption. While it may be that the applicants had an expectation regarding a future disclosure, analysis of the information under review is what is required under the GIPA Act. A lack of any prior notice that legal professional privilege may arise on creation of a confidential communication created for the purposes of providing the legal advice is not relevant to this analysis.

Orders

1. The following orders are made: 1. The decision under review is amended to record that documents 13, 14 and 16 have been released to the applicants by the respondent. 2. The decision under review is affirmed.

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: 12 August 2020