Else v Commissioner of Police, NSW Police Force

Legal Privilege

1. In SL v University of Sydney [2011] NSWADT 65 at paragraphs [21] - [26] Judicial Member Fitzgerald considered a number of authorities in relation to the issue of exemption on the ground of legal professional privilege. She stated: 21. Legal professional privilege arises from a lawyer/client relationship and applies to "confidential communications" between the lawyer (as legal advisor) and the client where the dominant purpose of the communication is either to enable the legal advisor to give or the client to receive legal advice; or to be used in pending or contemplated proceedings. See Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 as affirmed in Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner [2002] HCA 49 ; (2002) 213 CLR 543. 22. The privilege extends to advice which is of a non-legal character where that non-legal advice is connected to the giving of legal advice or for contemplated or pending litigation and to copies of documents that are not privileged where the copy is made for the dominant purpose of obtaining legal advice or for use in pending or contemplated litigation (see Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 509, 550, 597). 23. The privilege applies to confidential communications between government agencies and their salaried legal officers provided they have the necessary degree of independence (see Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 62 and 73). 24. As set out in Chan v Department of Education and Training (GD) [2010] NSWADTAP 7: 'The agency carries the onus of proof in establishing that documents are exempt on the ground of legal professional privilege under s 61 of the FOI Act: 'the burden of establishing that the determination is justified lies on the agency'. As Graham J said in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445: 'It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence [various authorities cited].' It is necessary to establish that in-house legal staff had the requisite degree of independence to bring the affected documents within the purview of privilege, having regard to the principles laid down by the High Court in Waterford v The Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54. While Gibbs CJ in Attorney General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 at 510 was inclined to the view that the privilege could only be claimed by a lawyer who has been admitted to practice, the law is now clear that the privilege does extend a situation where a non-qualified person, such as a law clerk, is giving advice subject to the supervision of a practitioner: see, for example, Glengallan Inv P/L & Ors v Arthur Andersen & Ors; Equuscorp P/L & Anor v Glengallan Inv P/L [2001] QCA 115 ; [2002] 1 Qd R 233 per Williams JA at [19]; see also, Southern Cross Commodities Pty Ltd (In Liq) v Crinis [1984] VicRp 61; [1984] VR 697 (Young CJ).

The material before the Tribunal

1. The Respondent has filed a copy of the withheld information and other material on a confidential basis. Section 64 of the Civil and Administrative Tribunal Act 2013 applies to that material.
2. The Respondent relies on the affidavit of Mr Gervais Laird dated 23 February 2021 and open and confidential submissions.
3. The Applicant has not been provided copies of the confidential material.
4. The Applicant provided submissions in relation to the issue in dispute.

Mr Gervais Laird

1. Mr Laird is a solicitor employed in the Office of General Counsel and has the day-to-day carriage of these Tribunal proceedings. Mr Laird provided an affidavit dated 23 February 2021 in which he outlined his personal role and the arrangements under which solicitors in the Office of General Counsel are engaged.
2. Mr Laird's evidence is that he has practised law in New Zealand, the United Kingdom and New South Wales and that he holds a NSW Practising Certificate - Government legal practitioner which he has held since 2017.
3. He stated that the Office of the General Counsel is a separate business unit of the NSW Police Force ("NSWPF") which provides legal advice to the organisation. Lawyers attached to the Office of the General Counsel report to the General Counsel who is a direct report to the Commissioner of Police.
4. In his role at the Office of the General Counsel Mr Laird provides legal advice on a range of legal issues affecting the NSW Police Force, including external reviews of decisions made under the GIPA Act. He also provides specialist legal advice and support to the Respondent's Public Affairs Branch. He provides legal advice to the various internal business units who have an interest in the proceedings and also provides instructions to the external law firm engaged to appear for the Respondent in the proceedings.
5. In relation to the withheld information he stated: I have viewed the document which has been confidentially filed by the Tribunal, which is an email I sent to Chief Inspector Phillip Brooks of the NSWPF Traffic and Highway Command dated 27 August 2020 (Email Advice). I have not been involved in dealing with the Applicant's access application or the decision made in relation to the release of certain information to the Applicant. I became aware of these proceedings when the NSWPF's InfoLink team contacted me as part of preparing their decision on the access application to discuss the Email Advice with me and seek the General Counsel's instructions on whether legal professional privilege in the Email Advice was to be waived ... Access to the Email Advice has been refused in full on the basis that disclosure of the Email Advice would disclose information which is privileged from production in legal proceedings on the ground of legal professional privilege ...
6. He further stated: I provided the Email Advice to Chief Inspector Phillip Brooks in my capacity as a solicitor. Chief Inspector Phillip Brooks was my internal client. The Email Advice has the disseminating marker "Sensitive: Law Enforcement" which indicates that access is to be restricted on the basis that the contents of the email relates to law enforcement related matters. The footer of the Email Advice contains the following warning: "This email and any attachments may be subject to legal professional privilege and should not be communicated to any third party without the consent of the sender. If you are not the named recipient please contact the sender to arrange for the return or destruction of the email". The content of the Email Advice is confidential. Access is limited to the parties to the email communication only. Records created by the Office of the General Counsel are otherwise stored in a dedicated part of the NSWPF's network and access is restricted the individuals attached to the Office of the General Counsel. The Email Advice was created for the dominant purpose providing legal advice to my internal client in connection with litigation (Tribunal review proceedings) involving the Applicant.
7. In relation to the issue of waiver of legal professional privilege, Mr Laird stated: The General Counsel is the only officer of the NSWPF who can waive legal professional privilege. The Acting General Counsel was consulted in accordance with Schedule 1 clause 5(2) of the 6IPA Act in respect of the Email Advice. She determined not to waive legal professional privilege in the document. The legal professional privilege in the document has not otherwise been waived. To release the Email Advice to the Applicant In these proceedings would disclose information which is protected by legal professional privilege.

Discussion

1. If the withheld information is subject to a conclusive presumption against disclosure, it is not necessary to balance the public interests in favour of or against disclosure before refusing access to it.
2. As I have noted, the withheld information has been filed with the Tribunal. I have considered that document. I am satisfied that the information is "legal advice" for the purposes of clause 5 of Schedule 1 to the GIPA Act and section 118 of the Evidence Act 1995.
3. I agree with the Respondent's submission that the withheld information: 1. is an email chain entitled ''Email Chain - Chief Insp Brookes 28.04.2020"; 2. is a confidential communication between Mr Laird and his internal client; 3. was created for the dominant purpose of Mr Laird providing legal advice to his internal client; 4. was intended to be confidential between Mr Laird and his internal client; and 5. bears a disseminating marker that is intended to limit its circulation and includes a warning that the content may be protected by legal professional privilege.
4. In accordance with clause 5(2) of Schedule 1 to the GIPA Act, the Respondent has considered whether to waive legal professional privilege in the information. It has determined not to do so.
5. I am satisfied that the withheld information contains legal advice and it is subject to a claim for legal professional privilege for the purposes of section 118 of the Evidence Act. I am satisfied that disclosure of the withheld information would disclose information that would be "privileged from production" for the purposes of clause 5(2) of Schedule 1 to the GIPA Act.
6. It follows that the information is subject to a conclusive presumption against disclosure. It is conclusively presumed that there is an overriding public interest against disclosure of information therefore it is not necessary that I consider the issue of whether there is an overriding public interest against disclosure of the information for the purposes of the GIPA Act.
7. Accordingly, the Respondent's decision to refuse to release the withheld information is the correct and preferable decision and it should be affirmed.

Order 1. 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: 29 October 2021