Eberand v Department of Customer Service - [2020] NSWCATAD 176 - NSWCATAD 2020 case summary — Zoe

NSWNSWCATAD

Eberand v Department of Customer Service

[2020] NSWCATAD 176

NCAT Administrative and Equal Opportunity|2020-07-08

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2020-07-08

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

Background

This is an application under s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for administrative review of a notice of decision of the respondent dated 22 November 2019 (Notice of Decision).
An access application under the GIPA Act was made by the applicant on or around 14 October 2019 (Access Application). The Access Application identified the information sought in the following manner: "On 4 May 2018 Minister Paul O'Toole issued a media release stating that [Greyhound Racing NSW (GRNSW)] has also alleged that [the applicant] has not disclosed any actual or potential conflict of interest in relation to an ongoing GRNSW inquiry [(Inquiry)] or his alleged involvement with the greyhound exported or links to people found guilty of exporting greyhounds to countries that don't comply with the Australian animal welfare standards. Please provide copies of correspondence between the Department of Industry and GRNSW in relation to those allegations and including submissions by GRNSW. I am seeking copies of all correspondence."
The applicant was a director of GRNSW but resigned after certain allegations were made against him.
The information identified by the respondent as being within the scope of the Access Application is dated between 2 May 2018 and 10 May 2018 (Relevant Period). The Notice of Decision provided access to part of the information identified as within the scope of the Access Application. Other information was redacted and not disclosed to the applicant (Excluded Information).
For the purposes of this decision, the Excluded Information can be categorised as follows: 1. Information referred to in the respondent's submissions as Tabs 1, 1A, 1B, 2, 2A, 2B, 3 and 4, which the respondent claims is information described in cl 5(1) of Sch 1 to the GIPA Act on the basis that it "would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege) …" (LPP Information). 2. Information referred to in the respondent's submissions as Tabs 5, 6, 9, 9B and 10 along with the LPP Information (as an alternate and additional argument to cl 5(1) of Sch 1 to the GIPA Act) and in respect of which the respondent claims various public interest considerations against disclosure outweigh those in favour of disclosure pursuant to the test in s 13 of the GIPA Act (Section 13 Information).

[5]

Evidence of Mr Terry O'Brien

The affidavit of Mr O'Brien states (and I summarise and paraphrase): 1. GRNSW is constituted under the Greyhound Racing Act 2017 (NSW) (Greyhounds Act) as "the body responsible for the commercial aspects of greyhound racing". The functions of GRNSW include "to conduct or authorise greyhound race meetings … and any other functions conferred or imposed by an operating licence under the [Greyhounds] Act". 2. By operation of transitional provisions in cls 1A and 6 of Sch 4 to the Greyhounds Act, GRNSW had the function of controlling, supervising and regulating greyhound racing in NSW prior to and during the Relevant Period. 3. Prior to and during the Relevant Period, the Minister responsible for the Greyhounds Act was the Minister for Racing. The Office of Racing was part of the portfolio of that Minister. The Office of Racing is part of Liquor, Gaming and Racing (LGR) which was part of the Department of Industry but is now part of the respondent following administrative changes by the NSW Government. 4. The Office of Racing provides "governance and racing policy advice to the Minister for Racing in relation to the Minister's exercise of functions in relation to … the Greyhounds Act [including] … the appointment and removal" of directors of GRNSW. 5. On 3 May 2018 GRNSW made a disclosure to the Minister for Racing regarding alleged breaches of the GRNSW Racing Rules arising from an inquiry into greyhound racing. On 4 May 2018, the Minister for Racing wrote to the applicant requesting him to show cause that he should not be removed from his position as a director of GRNSW. 6. Mr O'Brien was involved in the preparation of briefings to the Minister for Racing and seeking legal advice in relation to the removal of the applicant as a director of GRNSW. 7. It is necessary for the Office of Racing and GRNSW to engage in communications that are confidential in nature due to the functions of GRNSW and those conferred on the Minister for Racing, including the removal of directors of GRNSW and matters arising from the operating licence granted to GRNSW under s 25 of the Greyhounds Act (Operating Licence). 8. Disclosure of these confidential communications: 1. "would prejudice the ability of the Office of Racing to properly advise the Minister" and, in particular, on issues relating to the "integrity of greyhound racing and probity of individuals involved in the industry". 2. could "inhibit the flow of information between GRNSW and the Office of Racing" and, in particular, GRNSW "would feel reluctant to provide information with the same level of detail and candour regarding sensitive issues" if GRNSW was aware that the information would be disclosed under the GIPA Act. 1. In respect of the LPP information Mr O'Brien states: 1. The information was provided by GRNSW to LGR or the lawyers acting for LGR for the purpose of LGR's lawyers providing legal advice. 2. It was understood that the exchange of information was on a strictly confidential basis and only to be communicated on a "need-to-know" basis. 3. The exchange of information was "in pursuit of a commonly held interest in ensuring the Minister [for Racing was] properly informed of the circumstances of a potential breach of the GRNSW Board code of conduct, in circumstances where the Minister would be required to consider whether to exercise his power to remove the relevant director … ".

[9]

LPP Information

GRNSW is a body corporate constituted by s 16(1) of the Greyhounds Act. Section 16(2) of the Greyhounds Act provides that GRNSW "is not and does not represent the Crown". Accordingly, and for the purposes of understanding who 'holds' any relevant legal professional privilege in the information, I consider that the respondent and GRNSW are separate 'entities'.
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."
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] and Saggers v Environmental Protection Authority [2014] NSWCATAD 37 at [26]).
Section 118 of the Evidence Act relates to 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, 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."
Section 117 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.
In Priest v State of New South Wales [2006] NSWSC 128 at [22], Johnson J stated (citations omitted): "Section 118 Evidence Act 1995 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 to be understood in a pragmatic sense - the term is not confined to telling the client the law, but includes advice as to what should prudently and sensibly be done in the relevant legal context."
In certain circumstances legal professional privilege can be waived by disclosure to a third party. Relevantly for the purposes of this decision, s 122(5)(a)(i) of the Evidence Act provides that such a waiver may not arise merely because the substance of the legal advice has been disclosed by the client or a party: "in the course of making a confidential communication or preparing a confidential document."
With respect to the LPP Information, I accept the evidence of Mr O'Brien that: 1. The Office of Racing was, at all relevant times, part of LGR which was part of a department (now the respondent) which provided advice to the Minister for Racing regarding the possible removal of the applicant as a director of GRNSW. 2. Prior to and during the Relevant Period GRNSW had the function of controlling, supervising and regulating greyhound racing in NSW. 3. Senet Legal Pty Ltd (Senet) was engaged by LGR to provide legal advice in furtherance of the respondent's responsibility to advise the Minister for Racing. 4. Information "from GRNSW was provided to Senet, either through LGR or directly from GRNSW for the purpose of Senet providing legal advice to allow LGR to brief the Minister".
I now turn to consider each of Tabs 1 to 4 of the LPP Information.

[10]

Tab 1

Tab 1 contains emails between Senet and the respondent and the General Counsel of GRNSW. There are two attachments (Tabs 1A and 1B) to an email from the General Counsel of GRNSW to Senet that were copied to the respondent.
All of the emails in the chain are noted as being "confidential and legally privileged". In my view, it is clear that the emails were sent on a confidential basis.
The 'last' email (being the most recent email in the chain) is from Senet to the its client, the respondent. From my review of this email it is clear that this is a communication from a lawyer to the client for the dominant purpose of the lawyer providing advice for the purposes of s 118(a) of the Evidence Act.
The 'first' email in the chain indicates that Senet and the General Counsel of GRNSW had been in some prior communications (whether by telephone, email or otherwise is unclear) because the email refers to Senet anticipating information from GRNSW in the near future. I note the contents of this email was disclosed to the applicant.
A subsequent email (which was not disclosed to the applicant) provides the anticipated information. Consistent with the evidence of Mr O'Brien, it appears that Senet required this information to provide advice to its client and the appropriate person to give the information was GRNSW given its responsibilities for controlling, supervising and regulating greyhound racing in NSW. It is also apparent from an email contained in Tab 2 that Tab 1A was provided for review by Senet and that Senet provided suggested amendments to Tab 1A to the respondent.
The term "document" is defined broadly in the Evidence Act and is capable of including the contents of an email as well as Tabs 1A and 1B. In my view (and when read with the email from Senet to the respondent) the information contained in the email from the General Counsel of GRNSW and Tab 1A are confidential documents that were prepared by "another person" for the dominant purpose of Senet providing legal advice to the respondent pursuant to s 118(c) of the Evidence Act.
Tab 1B was not prepared by the GRNSW (or the respondent) and could not be said to have been prepared for the dominant purpose of a lawyer providing advice to a client. I understand the respondent's submission to be that the disclosure of Tab 1B would have the effect of revealing the "substance and scope of [the] advice" provided by Senet. Tab 1B is a publicly available document and having had regard to the information provided to the Tribunal on a confidential basis and to the respondent's submissions (which were served on the applicant) I do not accept that the disclosure of Tab 1B would have the effect of revealing the "substance and scope of advice" provided to the respondent. I have also considered whether Tab 1B is information that could reasonably be expected to have any of the effects sets out in the Table. However, as it that is publicly available, I do not consider that it could have such an effect (see Eyes v Wyong Shire Council [2015] NSWCATAD 214 at [42]). Given this, document 1B should be disclosed to the applicant.
I consider that the Excluded Information in Tab 1 (other than Tab 1B) is information of a kind described in cl 5(1) of Sch 1 to the GIPA Act and in respect of which it is to be conclusively presumed that there is an overriding public interest against disclosure.

[11]

Tab 2

Tab 2 contains emails between the respondent and Senet and the General Counsel of GRNSW. There are two attachments (Tabs 2A and 2B) to emails from the General Counsel of GRNSW to the respondent.
The emails between GRNSW and the respondent are marked "subject of common interest privilege - not for distribution". In my view, these emails were sent on a confidential basis.
An email from the respondent to Senet is not marked as confidential. As outlined above, confidentiality for the purposes of a communication between the lawyer and a client pursuant to s 117 of the Evidence Act, can be express or implied. I accept the evidence of Mr O'Brien as to the confidentiality that surrounded the allegations made about the applicant prior to and during the Relevant Period. Accordingly, I find that this communication between the respondent and Senet was also made on a confidential basis.
From my review of this email it is clear that it is a communication from the client to a lawyer for the dominant purpose of the lawyer providing advice for the purposes of s 118(a) of the Evidence Act.
The other emails and attachments in Tab 2 are from GRNSW to the respondent and, unlike those in Tab 1, were directed to the respondent and not Senet (and Senet was not copied). While it is clear that the respondent sought advice from Senet following receipt of the emails and attachments from GRNSW, the relevant test in s 118 of the Evidence Act is that the documents from the third party were prepared for the dominant purpose of the lawyer providing legal advice. In my view, the purpose of these emails and Tabs 2A and 2B could not be said to be for this dominant purpose as it appears there were other relevant purposes for which the email and documents were prepared. However, for the reasons set out below in relation to the Section 13 Information, I consider that the emails from GRNSW to the respondent and Tabs 2A and 2B is information that, if disclosed could reasonably be expected to have the effect set out in cl 1(f) of the Table.
In respect of the Excluded Information in Tab 2, I consider that: 1. the email from the respondent to Senet is information of a kind described in cl 5(1) of Sch 1 to the GIPA Act and in respect of which it is to be conclusively presumed that there is an overriding public interest against disclosure. 2. the balance of the information is information that could reasonably be expected to have the effect set out in cl 1(f) of the Table and, on balance, should not be disclosed to the applicant.

[13]

Tab 4

Tab 4 contains emails between Senet and the respondent, the General Counsel of GRNSW and Senet and Dentons Australia Pty Ltd (Dentons) and the General Counsel of GRNSW. There are no attachments in Tab 4. The respondent's submissions and the evidence of Mr O'Brien is that Dentons were instructed as external lawyers for GRNSW. This is consistent with the nature and content of the emails between Dentons and GRNSW.
All of the emails in Tab 4 are marked "privileged and confidential" and were sent on a confidential basis.
The email from Senet to the respondent is a communication from a lawyer to the client for the dominant purpose of the lawyer providing advice for the purposes of s 118(a) of the Evidence Act.
In relation to the emails between Dentons and GRNSW, cl 5 of Sch 1 to the GIPA Act does not require that the privilege is "held" in favour of the respondent to proceedings before the Tribunal in order for it to be information of the kind described in cl 5(1) of Sch 1 to the GIPA Act. In my view, it is clear from the emails between Dentons and GRNSW that they are communications between a lawyer and a client for the purposes of s 118(a) of the Evidence Act.
The respondent submitted that any legal professional privilege that does exist would have been waived to the extent it was disclosed by GRNSW to the respondent.
The emails between Dentons and GRNSW were provided to Senet on a confidential basis. In the circumstances before me, this does not waive the privilege in those communications. Section 122(5)(a)(i) of the Evidence Act provides that a client is not taken to have acted in a manner inconsistent with that party objecting to the adducing of evidence merely because the substance of the advice has been disclosed in the course of making a confidential communication. The evidence available to me supports a finding that the communication from GRNSW to Senet was a confidential communication. There is no evidence before me that the respondent or GRNSW acted in any way that may be inconsistent with maintaining this confidentiality.
I consider that the Excluded Information in Tab 4 is information of a kind described in cl 5(1) of Sch 1 to the GIPA Act and in respect of which it is to be conclusively presumed that there is an overriding public interest against disclosure.

[19]

Clause 1(f) - prejudice the effective exercise of the agencies functions

I will first consider cl 1(f) of the Table and the effect of disclosure on the exercise of the respondent's functions.
Under the transitional provisions, the functions of GRNSW prior to and during the Relevant Period included controlling, supervising and regulating greyhound racing in NSW. It was in pursuance of these functions that GRNSW disclosed information about about the applicant's alleged conduct to the Minister for Racing.
It is apparent from the provisions of the Greyhounds Act that the functions of the Minister for Racing include the removal of directors of the board of GRNSW. Consistent with these legislative provisions, I accept that the respondent has the function of providing advice to the Minister for Racing.
Relevantly, Mr O'Brien's evidence includes the following: "In particular, issues relating to the integrity of the greyhound racing industry, and the probity of individuals involved in the industry, raise matters of considerable sensitivity. It is crucial that GRNSW be able [to] provide full and frank disclosure of such matters to the Office of Racing, so that the Office may provide the Minister with the appropriate advice and the Minister is best placed to exercise functions conferred under the [Greyhounds Act] … [A]ny consideration of whether the Minister should exercise the power to remove a director of the Board of GRNSW would likely require confidential communication with certain persons in GRNSW. The likely sensitivity of issues arising is apparent when you consider that the grounds available to the Minister are "incapacity, incompetence, misbehaviour or a contravention of the code of conduct … ".
I accept the evidence of Mr O'Brien in this regard.
In order for the respondent to effectively exercise its functions, I am of the view that it was necessary for the respondent to work closely with GRNSW and I accept that the information required from GRNSW was highly sensitive in so far as it arose from investigations about conduct matters involving the applicant and other individuals. The same circumstances could also be expected to arise in the future as between the respondent and the regulator that has assumed (or will assume) responsibility for controlling, supervising and regulating greyhound racing in NSW at the end of the transition provisions.
In terms of considering any prejudice that may arise for the purpose of cl 1(f) of the Table, I also accept that respondent's function of fully informing the Minister for Racing requires the comprehensive and ongoing disclosure of information from the regulator of greyhound racing to effectively inform the Minister for Racing. The information that GRNSW must disclose under cl 24(g) of the Operating Licence is limited to information that is capable of "adversely affecting the representation or integrity" of GRNSW or that may be capable of "attracting negative publicity" to GRNSW. Having reviewed the Excluded Information in the Section 13 Information, I find that the information that was disclosed by GRNSW is broader than that which GRNSW was legally obliged to disclose under cl 24(g) of the Operating Licence.
In my view, if highly sensitive information arising from investigations of conduct allegations was disclosed to the applicant under the GIPA Act it could reasonably be expected to prejudice the exercise of the respondent's functions for the purpose of cl 1(f) of the Table.
Having established that the Section 13 Information is information of a kind described in cl 1(f) to the Table, I now turn to the balancing exercise required by s 13 of the GIPA Act.
The Section 13 Information is contained in a limited number of emails that were sent between the respondent and GRNSW during the Relevant Period. Having reviewed the Section 13 Information, it is convenient to deal with the Section 13 Information in its totality when considering cl 1(f) of the Table as the emails all arise from the conduct allegations about the applicant.
The applicant clearly has personal interest in this matter as the charges arising from the conduct investigation relate to him. This is a public interest consideration in favour of disclosure pursuant to s 55(2) of the GIPA Act. In my view, such a factor should be given significant weight.
There is also an important public interest in informing the public about the operations of the respondent. This should be given a moderate weight.
The applicant's submission that transparency in the respondent's operations will encourage skilled and experienced people to take up board positions on government agencies and statutory corporations should be given a low weight as such people will consider a wide range of matters before nominating for such positions.
I have also considered the applicant's submission that he has been denied procedural fairness by the respondent. The Tribunal has previously found (in the context of workplace investigations) that the right to procedural fairness may be a factor considered by the Tribunal as a consideration in favour or disclosure in certain circumstances (see Burke v Health Education and Training Institute [2016] NSWCATAD 194 at [44] and Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60 at [37). In this matter, the evidence available indicates that the Minister for Racing did provide information to the applicant as part of the show cause process, but the applicant chose to resign immediately rather than respond to the show cause. Given this, I do not propose to consider the applicant's submission regarding procedural fairness further in this decision.
Matters involving the alleged conduct of individuals are very often highly sensitive at all stages of a matter. Investigations may relate to and involve a number of people, including witnesses. It is not infrequent that allegations are made but the evidence available is found to be insufficient to support an allegation and the matter is taken no further. In other cases, the evidence is sufficient and further steps may be taken following a number of sensitive decisions and assessments based on the information available to decision makers. Regardless of these matters, the implications for those involved is likely to be very significant and the information created and communicated is likely to be very sensitive.
The functions of the respondent included receiving and assessing this sensitive information in close consultation with GRNSW in order to then inform and advise the Minister the Racing. It can be reasonably expected that such sensitive information is less likely to be shared if it is provided on the basis that it would be made publicly available under the GIPA Act. This would limit the ability of the respondent to fully advise the Minister for Racing regarding sensitive conduct matters. Given this and on balance, I consider that greater weight should be given to the public interest against disclosure of the Section 13 Information on the basis of cl 1(f) of the Table.

Eberand v Department of Customer Service

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