DOI v NSW Trustee and Guardian

Consideration

The first matter to consider is the applicant's submission that an administrator can claim legal professional privilege only if it has applied to the tribunal for an order under s 59 of the ADR Act within 28 days after receiving notice of the application for review and the tribunal has made an order under s 59(2). As TAG had not so applied, it was not entitled to privilege for the documents in question. Neither party having referred to any authorities dealing with the relationship between the two sections, the point appears to be a case of first impression. The parliamentary explanatory notes shed no light on the matter.
As client privilege is regarded as a fundamental support for the adversarial system (or for an inquisitorial system for that matter), that would be a somewhat surprising result. It could mean, for example, that if a legal opinion were to come to light while a trial or hearing was in progress, it would by then be too late to claim privilege for it.
The language of the provisions itself affords little support for the applicant's position. It will be noticed that s 59 is not expressed in imperative terms, but states that an administrator "may" apply for an order and does not purport to exclude any other means of claiming privilege.
More significant is the fact that both ADR Act provisions turn on the application of s 67, the privileged documents provision of the CAT Act. In s 59 it is the basis of the tribunal's power to make an order, and in s 58(7) it is the basis of the exemption from disclosure, an arrangement that suggests that the two provisions are intended to confer privilege independently. The applicant submitted that the reference to s 58(1) in s 59(1) was purely for the purpose of setting the timeframe, but even if that were so, it would not mean that s 59 was intended to be the exclusive method of establishing privilege.
Furthermore, s 58(7) designates an order made under s 59 as being only one of three possible bases on which a document can be exempted from disclosure, another being s 67 of the CAT Act. That section exempts from disclosure any document that would be privileged before a New South Wales court by reason of, relevantly, part 3.10 (Privileges) of Chapter 3 of the Evidence Act. Part 3.10 includes ss 118 and 119, the provisions that give statutory force to legal professional privilege.
In other words, s 58 contemplates that an order under s 59 is not the only way in which a document can receive privilege; it is only one of three ways, another being the applicability of ss 118 or 119 of the Evidence Act. Consequently, it is not necessary for an administrator to apply for privilege under s 59, though it may be convenient to do so if there is potentially a dispute about whether or not client privilege applies. TAG is therefore entitled to make a claim for privilege in this case.
The applicant's other line of argument is that even if the respondent originally had a sound claim for privilege, it had waived or otherwise lost it by reason of one or more of ss 121 to 126 of the Evidence Act. He submits, first, that s 121(3) makes the documents admissible because they affect "a right of a person", in this case his own right to obtain a fully-informed review of the decision in question. The authorities do not support that proposition. In Talbot v NRMA Ltd [2000] NSWSC 602, [3], for example, Hodgson CJ in Eq observed: In my opinion, [the words "affects the right of a person"] cannot mean a communication or document that is relevant to a right of a person because that would virtually eliminate the legal professional privilege as a ground for non-admission of evidence. In my opinion, that must mean a communication or document that affects in some fairly direct way what are the actual rights and perhaps also duties of a person.
Next, the applicant submitted that privilege had been lost because the respondent had consented to the adducing of the evidence within s 122(1), inter alia by revealing that it had obtained a legal opinion. But revealing that legal advice has been received does not normally constitute deployment of the substance of the legal advice for a forensic or commercial purpose: Nash v Glennies Creek Coal Management Pty Ltd (No. 6) [2014] NSWIRComm 36, [92] - [106].
Again, a mere reference to the existence of legal advice will not amount to disclosure. The words "I instructed counsel to advise on this liability" have been held not to result in a loss of privilege under s 122(3) because they "said no more than what it would have been necessary to say in order to claim client legal privilege": NRMA Ltd v Morgan (No. 2) [1999] NSWSC 694, [9]. In that case Giles J continued (at [16]): [I]n any event, his words did no more than indicate that there existed a confidential communication between himself and counsel on the subject of advising on the liability and did not, in my opinion, disclose the substance of the communication".
The applicant also sought to rely on s 124, which permits a party to adduce evidence of communications with a lawyer, or the contents of a confidential document, where, before the commencement of the proceeding, the party had jointly retained a lawyer in relation to the same matter. He pointed out that he has been his mother's confidant for 20 years and that Carroll & O'Dea are acting both for Mrs A .and for TAG. That is not a sufficient basis for the application of s 124, however. In the present proceedings the applicant has not had a joint lawyer with Mrs A. Nor has he ever been a client of Carroll & O'Dea.
In view of the conclusions I have reached above, s 126 cannot apply in the present circumstances either. Further, the applicant's proposition that the advice given might have related purely to administrative and operational matters rather than legal matters, and might thus not constitute legal advice for the purposes of ss 118 and 119, is purely speculative. I therefore conclude that the respondent has not waived or lost client privilege and is not precluded by s 59 of the ADR Act from claiming it now.
That does not, however, settle the question of whether the documents the respondent has declined to produce are in fact covered by client privilege.
It is quite common for courts and tribunals to accept a claim of legal professional privilege on the basis of the evidence before them, but without actually inspecting the documents themselves. In the present case, I do not think that would be an appropriate course of action. the applicant has maintained strongly throughout the proceedings that the legal opinion was manifestly crucial to the respondent's decision to institute proceedings against J. He argues emphatically that he cannot prepare his case for review of the decision without acquainting himself with the contents of the legal opinion.
The law relating to privilege does not recognize the intensity of a party's desire for access to documents as a ground for treating client privilege as non-existent or lost. Nevertheless, in the circumstances of this case, for the tribunal to decide the question of privilege without itself seeing the documents to which the claim relates might not be consistent with the objects of the CAT Act as set out in s 3, notably s 3(g), "to promote public confidence in tribunal decision-making in the State…." Under s 38(5) the tribunal also has a duty "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". It must also "ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings": s 38(6)(a).
I will therefore direct that the respondent produce all documents in respect of which it claims legal professional privilege to the tribunal in order to permit the tribunal to determine the question. Section 67(1)(c) of the CAT Act adopts the privileges provisions of part 3.10 of chapter 3 of the Evidence Act. Part 3.10 includes s 133, which states that "If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the documents for the purpose of determining the question". Section 67(1)(c) may have the effect of adopting s 133 as well as ss 118 and 119. Alternatively, s 38(1) of the CAT Act, which gives the tribunal the power to determine its own procedure, would authorize the tribunal to make such an order.
After inspecting the documents in question, I would propose to proceed to decide the interlocutory issue on the papers. Until then, the interlocutory application stands adjourned.

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