CHU Underwriting Pty Ltd v Hunter Water Corporation

Jurisdiction

1. There is no dispute that the application for administrative review has been lodged within time, nor is there any dispute that the Tribunal has jurisdiction to review the matter. The decision under review is a reviewable decision in accordance with s 80 (d) of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act.

The Legislative Provisions

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 paragraphs 5 -10 the following outline of the provisions is provided: 5. 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. 6. 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. 7. 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.
3. In respect of the information the respondent withheld, they relied upon one of the conclusive presumption against disclosure grounds as set out in schedule 1 of the GIPA Act. This ground relates to material for which a claim of legal professional privilege is made. Cl 5 of Sch 1 provides: 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.
4. The respondent relied on this conclusive presumption in respect of all of the information in the withheld documents.
5. Unlike information for which public interest considerations against disclosure are claimed, (s-14) material for which a conclusive presumption is maintained is not assessed or weighed for consideration of release, but rather assessed as to whether it meets the definition of the conclusive presumption descriptor. If such information is assessed as meeting that description then no further assessment or weighing occurs and the material is withheld at that point.

Determination of matter on the papers.

1. Both parties consented to the Tribunal making an order on 24 July 2018 that the matter be decided (without a hearing) on the papers, once each party had filed written submissions on the issues.
2. Having considered the substantive submissions of both parties and the scope of the matter for determination, I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other material provided to the Tribunal. I determine that notwithstanding the earlier consent order, I maintain the order dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). The Notice of Review Decision does not put forth any other arguable grounds or any alternate basis for withholding the information under the GIPA Act.
3. By the time that the matter was to be determined by me after the closing of submissions the issues in dispute had been narrowed. The parties agreed that the sufficiency of search issue (referred to by the respondent as full disclosure) was no longer in dispute as it was not pressed by the applicant.

Summary of background to information request.

1. Early on the morning of 22 September 2017 a water main failed flooding a number of Strata residences in Elemore Vale Newcastle. The applicant is the insurer for the relevant Strata Scheme and is seeking to obtain information from the water utility agency (the respondent). This action follows earlier public comments by the respondent that they took 'full responsibility' for the matter. A copy of the public record of those comments was filed (without objection) by the applicant.
2. The respondent asserted LPP over all of the remaining withheld documents predominantly relying on the fact that at 9:20am on 22 September 2017 (approximately six hours after the incident commenced) their General Legal Counsel sent an email to all staff requesting that all reports be commissioned by her and provided to her on a confidential basis. The request extended to draft reports. It is the information as referred to in the email that was subsequently created for which the LPP claim is made and the Cl 5 Sch 1 GIPA Act . By now considering and not waiving the privilege - Sch 1 Cl 5 (1) the position refusing release is maintained.
3. The email was annexed to the open affidavit of Laura Hiles affirmed 14 August 2018. Whilst the email itself is marked 'Confidential and legally privileged - issued for the purpose of legal advice and / or anticipated legal proceedings', by virtue of it being disclosed in an open affidavit the respondent has waived any privilege claim in that document (the email).

The issue to determine in these proceedings is: do the documents attract Legal Professional Privilege?

Consideration on LPP

1. The most efficient approach is to consider the LPP material and see if on a preliminary basis there is a conclusive presumption against the disclosure of that material: GIPA Act, Sch 1, cl 5. As noted, the respondent maintained that it had not previously waived any legal privilege and maintained the position refusing any waiver.

Principles of Legal Professional Privilege

1. The concept of LPP has been well established as a legal concept over many years. The case of Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 like many cases establishes the requisite LPP requirements in the GIPA Act context. At [54] the Tribunal observed: 54. 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. 55. These provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995 (NSW).
2. An examination of the confidential material shows a series of emails attaching information about the water main system. Some emails only attach photographs and others written information. There are three file notes and one Investigation Report. All documents post-date the Hiles email and contain the LPP confidentiality header on the documents.
3. The question for the Tribunal is whether these documents were brought into existence for the dominant purpose of providing legal advice to a client or the client being provided with professional legal services.
4. Sections 118 and 119 of the Evidence Act 1995 provide: 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. 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.
5. The respondent made submissions that the information attracts client legal privilege as it appears in Part 3.10 of the Evidence Act 1995. Reference was made to the provisions of s 177 of the Evidence Act 1995 which defines the terms 'confidential communication', 'confidential documents', 'client' and 'lawyer'.
6. The respondent referred to the meaning of the words 'dominant purpose' and referred to a reference in the Administrative Decisions Tribunal (ADT) dealing with a Freedom of Information (FOI) matter. In Battin v University of New England [2013] NSWADT 73 at [35] the ADT observed: A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].
7. The respondent relied upon the affidavit of L Hiles affirmed 14 August 2018 and the annexure email (referred to at [21]). The affidavit states that the deponent was aware that legal advice / services would be necessary as a result of the incident. The affidavit states at paragraph [3] that: 3. I was aware that I or my team would need to provide legal advice and professional services to HWC in connection with the incident and potential legal proceedings which could flow from it, therefore the purpose of my email was to: a. ensure that all reports relating to the incident were commissioned by me and all other communications about the incident were provided to me, so that I or my team could provide legal advice and legal professional services to HWC; and b. ensure that the confidentiality of all communications about the incident was maintained.
8. The affidavit goes on to state that the photographs, and reports provided in response to the email were used solely for the purpose of providing legal advice to HWC.
9. In written submissions the respondent noted that: (a) all the withheld documents were created after the issuing of the email, (b) there were claimed to be confidential, and (c ) they were created for the dominant purpose of Ms Hiles providing legal advice to the Respondent the Respondent being provided with professional legal services relating to anticipated legal proceedings.
10. The applicant in written submissions identified that the respondent had referred to client legal privilege as it appears in Part 3.10 of the Evidence Act 1995. The applicant set out a brief chronology / factual outline since the incident. The Tribunal understands that none of those matters are contested by the respondent. The applicant was the insurer of the owners of the Strata Plan (property) and that on 22 September 2017 the property incurred significant damage from flooding caused by the respondent's burst water main.
11. The applicant referred to the media announcement that occurred: 'at around the time of the incident'. (Applicant's submissions Par [4.3]) That announcement was to the effect that Hunter Water accepted full responsibility for the burst water main. It is not clear exactly what the applicant means by the reference to 'at around the time of the incident', but I note that the incident occurred at 3:00am and a statement prior to dawn when the matter could be viewed and assessed would be unlikely. The confidential documents do indicate matters occurring in the minutes and hours immediately following the breach. However the exact time of the announcement is unclear and no evidence was provided on this point.
12. The applicant seems to import some meaning into this as they state at Par [4.4] of their submissions that: The respondent now seeks to claim legal professional privilege over the documents sought in relation to the incident, relying on the Affidavit of Ms Laura Hiles affirmed 14 August 2018 and the one (1) email annexed thereto authored by Ms Hiles dated 22 September 2017.
13. As I have observed above the email issued at 9:20am some six hours after the incident. The timing cannot be otherwise resolved on the available evidence and in any event what the applicant appears to be submitting is that their (the respondent's) position has changed somewhat since the time of that public announcement. Whilst their position may or may not have changed over the substantive liability issue, I infer that the applicant raises the circumstances in these proceedings to infer that initially the response was not sought to be legally protected, but subsequently (even very shortly afterwards) it was.
14. As the applicant submitted, LPP is not established by the mere assertion that the privilege applies to a particular communication. The applicant relied on the reasoning of the Federal Court in Ensham Resources Pty Limited v AIOI Insurance Company Limited [2012] FCA 710 at [45-52] 45. The correspondence between Mr Stockdale, Mr Kodaira and Mr Bickle reveals a deliberate attempt by the solicitors for the insurer to attract legal professional privilege to the Crawford reports. This is particularly evident in self-serving statements referring to a potential claim for privilege contained in the email from Mr Stockdale to Mr Kodaira dated 18 January 2008. The email explains the reasons for replacing Mr Kodaira's retainer of Crawford with that of Mallesons. 46. Despite such attempts to attain the status of privileged communication, the Court does not find such statements persuasive. As Marks J stated in Protean at p 6: It is clear that a studious cast of verbiage cannot work the alchemy of transforming what would be otherwise unprivileged into privileged documents. 47. The Court must consider objectively whether the reports were privileged.
15. The applicant submitted that at the time of the Hiles email of 22 September 2017 there were no legal proceedings commenced or legal disputes raised with respect to the incident. The applicant submitted that the respondent has not provided any evidence to support that basis of the LPP claim.
16. In support of their contention that the LPP claim was an ambit claim, the applicant made the following submission: 4.10 … The Applicant has received no material from the Respondent other than 9 individual unmarked photographs. The remaining documents produced by the Respondent are in relation to Item 2 of the Applicant's GIPA request and relate to maintenance reports issued prior to the incident. 4.11 It is inconceivable to believe that all communications and documents prepared on behalf of the Respondent regarding the incident (minus the 9 photographs produced) would have failed to come into existence had Ms Hiles not been 'required to provide legal advice or legal professional services'.
17. The respondent referred to other cases on the concept of when LPP applies and the onus to substantiate the provision being on the entity asserting the claim. In Seven Network Limited v News Limited [2005] FCA 142 the Federal Court observed at [6] - [7]: 6 It is well settled that simply to label a document as being "prepared for legal advice" or as "privileged" or as being "without prejudice" is of itself insufficient to justify the privilege. The Court will look to the substance of the matter, having regard to the content, context and evidence as well as the form of the document. 7 The onus, of course, is on the party claiming that a document is privileged to satisfy the court that the document came into existence for a dominant legal purpose.
18. In closing the applicant submitted that the attempted practice of filtering all documents relating to the incident through the Respondent's in-house lawyer: 4.14 …. does not entitle the Respondent to maintain legal professional privilege over the documents if the documents would have otherwise come into existence for a different purpose (e.g. for the assessment and repair of the damaged water main). Under such circumstances the documents cannot be considered to have come into existence for the dominant purpose of the Respondent's lawyer giving legal advice or services in contemplation of litigation and are required to be produced pursuant to the Respondent authority's obligations under the GIPA Act.

Were all documents prepared for a purpose for which LPP applies?

1. I have examined the confidential documents. Because of the finding that I make I have refrained from describing the contents of the documents in any significant detail in the absence of issuing confidential reasons.
2. An examination of the Investigation Report (being one of the documents referred to at [24] above) reveals that the purpose of the investigation was to identify why the 500mm CICL water main failed at Elemore Vale on the 22nd of September 2017. (Item 2 on page 3 of report). The investigation (upon which the report is based) - clearly commenced prior to the email being sent at 9:20am. This observation is based on the information in page 3 of the report.
3. On that basis it seems highly unlikely that either the dominant or sole purpose of that report was to allow a lawyer to provide legal advice or professional legal services to existing or contemplated litigation.
4. There is no evidence that litigation was contemplated about the matter, if anything the only evidence before the Tribunal is the public statement that the respondent accepted full responsibility for the incident. Nowhere in the material before the Tribunal is the public statement retracted or otherwise qualified or withdrawn.
5. The view about legal proceedings and advice appears to only arise due to an awareness of the witness in the affidavit subsequently prepared to put the 22 September 2017 email in context. I have examined all of these documents in addition to the other documents fully withheld from the applicant.
6. In my view the Incident Investigation Report of April 2018 does not attract a LPP claim and should be released to the applicant. I note that it is the most substantial document of those for which the LPP claim is made.
7. A reference is made at page 7 of the report (in a timeline / chronology) to the matters deposed in the affidavit, namely that at 9:20am L Hiles set up 'Legal Privilege' for the incident. If this was to be taken on its face then the whole incident would have been 'legally privileged' which clearly it was not nor can it be when one has regard to the cases set out above and the wording of the statute.
8. Likewise the claim of LPP on the suite of photographs attached to the email of P Thomson 4 October 2017 8:23am enclosing 6 photos cannot in my view be maintained. No note is on that email and it appears to only be 'captured' by the claim because of the date and address of recipient. In my view these are photographs with no context and matters not of any confidential subject. The photos show workers (and sometimes with machinery) working on pipes in public view.
9. The same position applies to the other three e-mails sent 8:23am, (5 photos), 8:54am. (5 photos) and 8:54am, (4 photos) all sent 4 October 2017. Presumably there are four emails and attachments in total due to the (data) size of the image files. In my view any LPP claim of those four emails and attachments as described here and in [48] cannot be maintained.
10. The Major Investigation Form (2 pages) does not attract any valid LPP claim for the same reasons as the Investigation Report. It sets out the scope of the eventual investigation and whilst it is signed five weeks after the email and incident it has no qualifier on the face of the record concerning any confidentiality. I reiterate my findings at [42] and [43] in respect of this document.
11. The email from J Wynn does not have a qualifier on the face of the record concerning any confidentiality. It appears to be a document setting out future strategies and has not been sent (or provided) to Ms Hiles but another person who appears to have technical expertise (based on the content of the email / subject matter). Ms Hiles is merely one of five persons to which the email has been copied. In my view it was not brought into being consistent with the principles of LPP as set out elsewhere in these reasons.
12. However in respect of the six remaining documents (the 4 file notes and the two emails from I. Hiles with attached reports) in my view these documents do attract the claim of privilege as asserted by the respondent. In open reasons I observed that they set out details of the respondent's actions and response and were prepared in the context of Ms Hiles email. In essence they appear to have been brought onto being for the sole purpose of providing material so that legal advice could be sought. The Hiles emails seek to identify mitigation issues. The claim on these six documents is maintained.
13. As was submitted by both parties the respondent bears the onus of establishing the claim under Sch 1 of the GIPA Act as well as the overall onus that the decision under review was the correct and preferable one.
14. As I have found that the single basis for withholding the documents identified at [42] - [51] above, being LPP is not made out, in the absence of any other grounds claimed by the respondent, the decision will be set aside in respect of those documents and orders will be made releasing those documents to the applicant.
15. In the absence of any further grounds by the respondent, there is no basis to determine the matter further.

Conclusion

1. The correct and preferable decision is that in respect of the documents described at [42] - [51] the decision will be set aside. The remainder of the decision of the respondent will be affirmed.
2. I therefore make the following orders:

Orders 1. The decision of the respondent is set aside in part. 2. The Investigation Report as identified at [42] of these reasons is to be released to the applicant 28 days after publication of these reasons. 3. The three emails and their attachments as identified at [49] of these reasons is to be released to the applicant 28 days after publication of these reasons. 4. The Major Investigation Report identified at [50] of these reasons is to be released to the applicant 28 days after publication of these reasons. 5. The email authored and sent by J Wynn identified at [51] of these reasons is to be released to the applicant 28 days after publication of these reasons. 6. The decision is otherwise 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: 28 November 2018