Charles Gauci v Commission for Fair Trading NSW

Background

1. The documents related to various matters concerning the 'fifth wheelers' compliance for use in the Australian market including the jurisdiction which they were to be registered for use or certified for sale. These issues were pertinent as the 'fifth wheeler trailers' were manufactured overseas and imported into Australia. In order to be approved for sale in Australia following import, various modifications were required including significant modifications to the electrical system / fit-out.
2. On 8 January 2014 the respondent determined to provide the applicant (and the other person) with copies of the information that they sought under section 8 of the Government Information (Public Access) Act 2009 (the GIPA Act) informally. Following dissatisfaction with the 8 January 2014 scope of material released by the respondent, on 10 January 2014 the applicant 'refiled' his formal GIPA Act application which was received by the respondent on 2 February 2014. The access application sought 'a copy of the final report of NSW Fair Trading Investigation reference 6641256.'
3. On 10 February 2014 the respondent determined the matter and decided to provide access to some of the documents (report) and to withhold some of the material. In withholding the material the respondent relied upon four provisions of the GIPA Act which in the respondent's view outweighed the general presumption of a public interest in favour of disclosure of the material. In addition the respondent relied on one provision of the GIPA Act which provided for a conclusive presumption against disclosure due to legal professional privilege claims. The 10 February 2014 decision constitutes the starting point for the Tribunal's review.
4. The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Applicable Legislation

1. The objects of the GIPA Act are as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 Senior Member Walker provides the following outline of the provisions: The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
3. Section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied. Relevant to this application, the Agency relied on the provisions outlined below (being public interest considerations) against disclosure of a small quantity of the information. Relevantly section 14 provides: 14 Public interest considerations against disclosure (1) 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. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
4. The Table to section 14 provides the various criteria or considerations referred to in section 14 (2). The Table lists seven areas whereby relevant public interest considerations against disclosure are set out. In its initial decision (10/2/14) the respondent relied on the following criteria: Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness, 4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (d) prejudice any person's legitimate business, commercial, professional or financial interests,
5. Schedule 1 of the GIPA Act provides for the listing of certain types of government information for which there is a conclusive presumption of overriding public interest against disclosure. The respondent also relied on one of the provisions under Schedule 1 for determining not to release certain aspects of the report / documents.
6. The Schedule provides (relevant to these proceedings) that: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure 5 Legal professional privilege (1) 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. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
7. Whilst the decision under review is dated 10 February 2014, and the application to the Tribunal was filed some nine months later, the matter has been commenced within the relevant time provided for in the legislation. Whilst the GIPA Act provides that a review to the Tribunal must be commenced within 40 working days of receiving notice of the decision (s-101 (1) of the GIPA Act), the appeal was filed within time because the provisions of section 101 (2) applied. That is that the application was filed within 20 working days of receiving notice of the completion of the Information Commissioner's review. On 20 March 2014 the applicant sought a review by the Information Commissioner under Part 5 Division 3 of the GIPA Act.
8. The Information Commissioner provided a report on 29 October 2014 and on 11 November 2014 the respondent considered that report's recommendations and acted on them in respect of one of the pages of the withheld material.

History of the matter before the Tribunal

1. The application of 20 November 2014 came before the Tribunal for three Planning Meetings prior to hearing on 21 August 2015. On 20 January 2015, 31 March 2015 and 9 June 2015 Planning Meetings occurred. It became clear that the respondent was dealing with a compliance inquiry and associated investigation in respect of claims and incidents arising from the matters referred to in paragraph 2 (above) concerning approval of the trailers for sale in Australia. However the GIPA application sought the report referred to in paragraph 3 (above) which was titled Review of NSW Fair Trading Response to Complaints Regarding Purchase of Fifth Wheeler Trailers - Gauci and 'Bxxxx'. (dated 10 January 2014)
2. At the first Planning Meeting the application was remitted to the respondent in order to reconsider their position / decision in respect of release of some of the remaining contentious pages of the investigation report. Aspects of this report (and attachments) constituted the remaining withheld or contentious information sought by the applicant. Specifically the issue concerned the redacted information on pages 7, 8, 9, 20 and 21 of the report.
3. Following reconsideration of the material the respondent provided full access to pages 7, 8, 9 and 21 but only partial access to page 20.
4. Further consideration was given to the withheld material, and by the date of the hearing only the following information remained withheld by the respondent:

• The Fair Trading Internal Memo dated 24 April 2013 which summarised the issue and advice sought (requesting the legal advice). This material constituted exhibit RC - 1 which was tendered by the respondent during a confidential hearing.
• Pages 23-26 inclusive (where redacted) of the review report in so far as the respondent relied on the Legal Professional Privilege consideration. This material constituted exhibit RC -2 which was tendered by the respondent during a confidential hearing.
• The Fair Trading Internal Memo dated 10 May 2013 which summarised the advice and recommendations (the legal advice). This material constituted exhibit RC - 3 which was tendered by the respondent during a confidential hearing.

The Hearing

1. The matter was heard on 21 August 2015. Ms Robosa Solicitor appeared for the Respondent. Ms P Huntress was given leave to appear and represent the applicant pursuant to section 45 (1) (b) (i) of the Civil and Administrative Tribunal Act 2013. In GIPA Act proceedings the onus lies on the respondent agency to substantiate their administrative decision whenever documents are withheld. The respondent relied upon the section 58 (Administrative Decisions Review Act 1997) material, written submissions, and the affidavit of Darryl William Mock as its open evidence.
2. There was a confidential hearing under section 107 of the GIPA Act in respect of part of the respondent's evidence and submissions. Section 107 provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of: (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
3. Having reviewed the evidence and matters that transpired during the confidential session, in my view there is no need to provide any reasons (which would require the protection of the confidentiality provided by the section) in respect of that session. The matters that transpired clarified or amplified some minor aspects of the respondent's case, and predominantly allowed the respondent's solicitor to efficiently submit how the contents of the material should be viewed in a certain manner.
4. As outlined at paragraph 17 above, three confidential Exhibits were tendered by the respondent. Their existence and description was not confidential to the proceedings, only their contents.
5. The respondent submitted that the material withheld relates to confidential communication and documentation made for the purpose of obtaining and giving legal advice. The respondent was asked by the Tribunal whether they had considered waiving the privilege. The respondent submitted that this had been considered and declined.
6. In further submissions the respondent relied on the report of the Information Commissioner. It was submitted that the Information Commissioner or their delegate had viewed the Schedule 1 (LPP) material and in their report of 29 October 2014 and 'found that legal professional privilege does apply'. (Para 76 of the IPC Report dated 29 October 2014).
7. The Affidavit of Darryl Mock was tendered in open evidence. The deponent held the position of Senior Solicitor in the Office of General Counsel, Legal Audit and Risk in the Department of Finance, Services and Innovation. Mr Mocks' evidence was that he holds a practising certificate as a solicitor. He set out the location of his office within the department at the relevant time, and the nature of his work and responsibilities at that time. His evidence was that NSWFT Legal Services provided litigation, legal advice and ancillary legal services to NSWFT business units. Files were kept secure, and restricted both in respect of physical and electronic access. Annexed to the affidavit were copies of organisational charts showing the location of the Office of General Counsel within the Office and Department.
8. Paragraph 16 of the affidavit deposed the following: In April 29013 the Governance Unit requested legal advice on several questions involving interpretation of statutory provisions potentially relevant to concerns raised by Mr Charles Gauci with NSWFT so that the Governance Unit could respond appropriately and accurately to the Commissioner for Fair Trading and Mr Gauci.
9. Finally the respondent submitted that the requirements of section 117 of the Evidence Act 1995 (NSW) were established. It was therefore submitted that the Tribunal should have regard to the provisions of section 118 of that Act. Evidence Act 1995 No 25 118 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.
10. In particular the submission was that the documents contained confidential material prepared for the dominant purpose of the lawyer(s) providing legal advice to the client. It was submitted that the Tribunal should have regard to paragraphs 26 - 31 inclusive and 41 of the case of Tebbutt v Minister for Lands and Water [2015] MSWCATAD 95. CLIENT LEGAL PRIVILEGE 26. The respondent claimed that there was an overriding public interest against disclosure of certain information to which it had refused to provide access, because that information would be privileged from production in legal proceedings on the ground of client legal privilege or legal professional privilege (GIPA Act, s 14(1), Sch 1, cl 5(1)). 27. The applicants submitted that the respondent was not "promoting the object or spirit of the Act" and that there was no overriding public interest against the disclosure of this information. They also submitted that the matter should not be decided upon legal precedents alone. They said that the internal legal advice relating to their issue had been funded by the public purse and should be available to the public and to them. They said they were prevented from taking any legal action due to the statute of limitations so would gain no legal advantage. 28. The Tribunal is bound to apply the law. It cannot, as the applicants appeared to suggest, provide information to them merely on the basis of what the applicants described as "commonsense" or "fairness". The circumstance that the applicants are statute-barred from taking legal action, if that be the case, does not affect the application of the rules of legal professional privilege or client legal privilege. Whether common law or statutory test applies 29. As the respondent identified in submissions, there has been some divergence in approach in Tribunal decisions as to whether cl 5(1) of Schedule 1 to the GIPA Act refers to legal professional privilege at common law, or to client legal privilege under the Evidence Act 1995 (NSW). For reasons I gave in Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 at [21]- [28], I am of the view that the correct approach to determining whether cl 5(1) of Sch 1 to the GIPA Act is engaged is to consider the application of the provisions of the Evidence Act 1995 concerning client legal privilege (see also Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 and Colefax v Department of Education and Communities [2013] NSWADT 75). Whether information would be privileged from production in legal proceedings 30. Section 118 of the Evidence Act 1995 provides as follows: 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. 31. The term "client" is defined in s 117 of the Evidence Act 1995 to include, relevantly: a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), ... (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory,...
11. Ms Huntress submitted that the applicant was content for the Tribunal to decide the matter. The applicant needed the information so that he could complete his research into '5th Wheeler Trailers'. It became apparent as the matter progressed that the applicant had been sold a non-complaint trailer in that it was not able to be certified or registered in New South Wales or Queensland, due to either the nature of the imported goods, or their attempted modifications to obtain compliance.
12. Whilst the applicant provided detailed and relevant written submissions prior to hearing, their relevance to the question before the Tribunal fell away once the respondent conceded the section 14 considerations and provided access to material up to the hearing. The submissions also addressed section 55 matters.

Consideration

1. Whilst personal factors of the applicant are a factor which can be taken into account in determining an access application (as per section 55 of the GIPA Act), as the matter is now quarantined to the conclusive presumption against disclosure material in the nature of legal professional privilege, in my view the section 55 matters are not applicable. Those matters should in my view inform (where applicable) considerations under section 14. This position appears to be supported by the wording of the section. Section 55 relevantly provides that: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
2. The general provisions relating to the existence of legal professional privilege are as follows. The material must be:

• In the context of a client and lawyer relationship,
• That there is a confidential nature to the communication or the document(s),
• The communication or the documents was brought into existence for the dominant purpose of either: (a) assisting the client in obtaining, or the lawyer to give or provide legal advice or services, (b) for use in either existing of proposed / contemplated proceedings / litigation.

1. As previously outlined these provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995 (NSW).
2. I note the respondent's evidence in the affidavit of Darryl Mock. In particular I note the evidence in respect of Mr Mock's practising certificate and the structure of the Office of General Counsel. In addition I note the office and Departmental structures and relationships that existed with that body at that time.
3. During both the open hearing and the confidential session, no evidence arose which would indicate that any of the communications between the respondent's officers referred to in the affidavit related to any issue other than the apparent provision of legal advice.
4. Having reviewed the material for which the claim of legal professional privilege is made, and having regard to the written submissions and in particular the evidence of Mr Mock, in my view the claimed material falls within the definition and description of material which can be subject to a valid claim of legal professional privilege.
5. As a result there is a conclusive presumption of an overriding public interest against disclosure of the material subject to the legal professional privilege claim.

Conclusion

1. Whilst there may be strong public interest reasons for the applicant being able to access the withheld material, the position is that notwithstanding the objects of the GIPA Act, material in Schedule 1 is conclusively presumed to have an overriding public interest against disclosure. Such material's inclusion in the Schedule may seem harsh or excessively contrary to those objects and the principles set out in section 15, that functions are to be exercised so as to promote those objects. This apprehension might seem particularly so when one considers that the GIPA Act is an Act which confers rights on individuals. However the legislature has not made the position iron clad, and / or in total contrast to the objects of the Act. The inclusion of Clause 5 (2) provides a potential remedy to the words of the Schedule. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.
2. In the current matter the issue of waiver has been considered by the Agency. The Tribunal cannot review that issue nor is it appropriate to seek to go behind such a decision.
3. Having made the finding that is set out at paragraph 36 (above), it follows that the correct and preferable decision is to affirm the decision of the respondent.

Orders 1. The decision of the respondent 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: 21 October 2015