Ferns v Commissioner of Corrective Services [2004] NSWCA 182 | Case summary

REASONS FOR DECISION Background 1 This decision relates to two applications, File No 053088 and File No 053281, made by Mrs Helen Ferns, as agent, on behalf of her son Craig Ferns ("the applicant"). Each application is an application for external review of a decision of the Commissioner, Department of Corrective Services ("the respondent") to refuse the applicant access to documents that he had requested pursuant to two requests under the Freedom of Information Act 1989 ("the FOI Act"). 2 Both applications were heard together and although there was an issue common to both applications, there were also some differences. The common issue was whether particular documents, which came within the applicant's FOI requests, were in fact exempt under cl.10 of Schedule 1 of the FOI Act. That clause provides that, for the purposes of the FOI Act, documents the subject of legal professional privilege are exempt. And if they are exempt this is a basis on which the respondent can refuse to grant the FOI applicant access to them: see s.25(1)(a) FOI Act. 3 Before dealing with this common issue it is necessary to briefly mention the other matters that were in issue in respect of each application. 4 File No 053088: This application related to the respondent's decision on the applicant's FOI request, of 4 November 2004, for access to documents that evidenced any surveillance of the applicant during 3 distinct periods. In the initial determination the respondent identified one document as coming within the request and for which the respondent refused to grant access. The grounds of refusal were that the document had been created by the Corrections Intelligence Group of the respondent Department in the exercise of its functions concerning the collection, analysis or dissemination of intelligence: see cl.4(3B) of Schedule 1 of the FOI Act. The applicant sought an internal review of this determination and in that request the applicant pointed out that the respondent had produced to the Industrial Relations Commission, pursuant to a summons, a bundle of surveillance documents relating to the applicant for a portion of the period specified in the applicant's FOI request. The applicant had commenced the proceedings in the Industrial Relations Commission on 5 May 2004, claiming that he had been unlawfully dismissed. 5 In the internal review determination, the respondent determined to give the applicant partial access to the Information Report. Those parts, which were to be deleted were identified in the determination and the grounds relied on for such deletions were that they were exempt under cl.4(3B) of Schedule 1 of the FOI Act or were not within the scope of the applicant's FOI request. The respondent also identified 8 further documents (i.e. those that had been produced to the Industrial Relations Commission) that came within the applicant's FOI request. In respect of these additional documents the respondent refused to grant the applicant access on the basis that they were privileged and exempt under cl.10 of Schedule 1 of the FOI Act. 6 In respect to the Information Report, on 6 September 2005, at the hearing of this application the applicant only contested the respondent's decision to refuse it access to the list of names to whom the Report was distributed. That list appeared at the end of the Report. The Tribunal determined this particular issue on 6 September 2005. The Tribunal found that the respondent had satisfied it that the deleted distribution list was exempt and ordered that the decision of the respondent in this regard was affirmed. The Tribunal also noted that the respondent had advised the applicant that there were only two names on the distribution list, that they were both officers of the respondent Department and that the respondent undertook to provide these officers with a copy of the Information Report containing the corrections and notations that had been agreed between the parties. 7 File No. 053281: The second decision for which the applicant seeks external review relates to an FOI request the applicant made on 8 July 2005. In that request the applicant sought access to 7 specified categories of documents, but the only documents in dispute were those that came within 3 of these categories (i.e. category 4, category 5 and category 6). The documents requested in category 4 related to all documents concerning the applicant that had been created since 1 August 2003. The documents requested in category 5 were documents concerning the applicant's mother and the documents in category 6 related to documents held by Mr Michael Woodhouse, Director of Probity and Performance and Chair of the Professional Conduct Management Committee of the respondent Department concerning the applicant's mother. 8 In response to the applicant's FOI request, on 13 July 2005, the respondent wrote to the applicant's mother and said that the applicant's FOI request had not been accepted pursuant to s.25(1)(5) of the FOI Act as the respondent was of the opinion that the documents requested in categories 1, 4, 5 and 6 had already been addressed in previous FOI requests by the applicant. In the response the respondent invited the applicant's mother to make amendments to the request having regard to the provisions in s.25(5) of the FOI Act. That sub-section provides that an agency is not permitted to refuse an applicant access to documents on the grounds set out in para 25(1)(a1), without endeavouring to assist the applicant in amending its FOI request. Para 25(1)(a1) provides that an agency can refuse access to documents if the work involved in dealing with an applicant's FOI request would substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions. 9 The applicant's mother responded to this invitation on 19 July 2005. On the same day, the respondent replied stating that "I will today accept your application. The number is 05/06-018 and will be due for determination on or before 9 August 2005." The applicant's mother responded on the following day and drew the respondent's attention to the requirement of s.18(3) of the FOI Act which required the respondent to deal with the applicant's FOI request within 21 days of receipt. She went on to say that as she had hand delivered the FOI request on 8 July 2005 the respondent was required to deal with the request by 29 July 2005 and not 9 August 2005. 10 On 1 August 2005, having received no determination from the respondent, the applicant's mother again wrote to the respondent and requested an internal review pursuant to ss.24(2) and 34 of the FOI Act. Subsequently, on 9 August 2005, the respondent made his determination. No issue was taken as to whether this determination was in fact an initial determination or an internal review determination. In the event it is in fact an initial determination and not an internal review determination, on the basis of the material before the Tribunal, I am satisfied that it is necessary for the Tribunal to deal with this application in order to protect the interests of the applicant and that the application was made within a reasonable time after the determination of the respondent: see s.55(2)(c) ADT Act. 11 In the respondent's determination of 9 August 2005 he set out in detail the documents that had been located and which came within the applicant's amended FOI request. In respect to those documents that came within category 4, the respondent determined to grant the applicant access to all documents except 21 documents for which access was refused on the grounds of various exemptions. Of these, access was refused to 17 documents (which included the 8 documents that are the subject of File No 053088) on grounds of legal professional privilege: cl.10(1) of Schedule 1 of the FOI Act. There is no issue in respect of the respondent's determination to refuse access to the remaining documents. 12 In respect to those documents that came within category 5, the respondent determined to grant the applicant access to all documents except 3 documents for which access was refused on the grounds of legal professional privilege. And in respect to those documents that came within category 6, the respondent advised that no documents, relevant to the FOI request, were held by Mr Woodhouse. In the application for external review, the applicant contended that there had not been an adequate search in respect of these documents. However, following the filing of an affidavit by Mr Woodhouse, sworn on 26 October 2005, the applicant did not press this part of his application for review. Accordingly, the only documents in issue were those which were claimed to be exempt on the grounds of legal professional privilege Legal principles - legal professional privilege 13 The legal principles that apply to a claim of legal professional privilege, whether pursuant to the common law or under the provisions of the Evidence Act 1995 (NSW), are well established following the High Court decision in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 as affirmed in Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner (2002) 213 CLR 543. 14 These principles have recently been summerised by the Tribunal and the Appeal Panel in Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135, and Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales (GD) [2004] NSWADTAP 40 (currently on appeal). So far as they are relevant to these applications they are as follows: (a) legal professional privilege 'is that of, and protects the interest of, the client' ( Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 570). It 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: (i) to enable the legal advisor to give or the client to receive legal advice; or (ii) to be used in pending or contemplated proceedings. In such cases, confidential communications with third parties (non-agent third party) may also be privileged if they are for use in such proceedings (see Hynes supra at [37] and Law Society of NSW supra at [27]); (b) 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 (see Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 550; Waterford (1987) 163 CLR 54 at 62 and 73 at 66; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246); (c) the privilege extends 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 (supra) at 509 and 597); (d) the privilege also applies to confidential communications between government agencies and their salaried legal officers which were undertaken for the dominant purpose of obtaining or giving legal advice or for pending or contemplated litigation (see Waterford v Commonwealth (supra)) (e) the scope of legal professional privilege is limited, which means that not every communication between a client and his/her lawyer or non-agent third party is privileged. In particular the privilege does not attach to documents that evidence transactions such as contracts, conveyances, declarations of trust, etc, even if they are delivered to a solicitor or counsel for advice or use in litigation (see Baker v Campbell (1983) 153 CLR 52 at 86, 112 and 122-123); (f) any extension of the scope of the privilege must not go beyond the rationale for the privilege (see Law Society of New South Wales (supra) at [33-35] and the authorities cited therein). That rationale being "the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client" (see Fagan v State of New South Wales [2004] NSWCA 182 at [71]; (g) the privilege is waived if the confidential communication is disclosed to a third party, either expressly or inadvertently (see Mann v Carnell (1999) 201 CLR 1; Goldberg v Ng (1995) 185 CLR 83 and Attorney General (NT) v Maurice (1986) 161 CLR 475). 15 The authorities constantly emphasise that for a document to attract privilege it must be established that it came into existence for and was prepared for the obtaining or giving of legal advice or for use in pending in contemplated litigation (see O'Reilly v Commissioner of State Bank of Victoria (1982) 153 CLR 1 at 22). As mentioned above, following the decision in Esso (supra), this need not be the sole purpose for which the document came into existence but it must be the dominant purpose. Evidence 16 The respondent, on whom the onus of proof lies (see s.61 of the FOI Act), tendered into evidence two affidavits affirmed by Ms Elizabeth Ball, solicitor employed by the respondent Department in its Employment and Administrative Law Branch. The first affidavit was affirmed on 21 September 2005 and related to the documents concerning surveillance of the applicant which are the subject of the respondent's decision in File No. 053088 and File No. 053281. The second affidavit, affirmed on 23 November 2005, related to the remaining documents the subject of the respondent's decision in File No. 053281 and for which access was refused on grounds of legal professional privilege. 17 Ms Ball was also made available for cross-examination at the adjourned hearing of both applications on 25 November 2005. At this hearing the applicant only pressed the respondent's decision in respect to the eight surveillance documents and the following documents that were the subject of the respondent's decision in File No. 053281: (a) facsimile coversheet from Mr Keith Bennett to Ms Margaret Parmeter dated 20 February 2004 ("document 2"); (b) email from Mr Bennett to Ms Ball dated 5 April 2004 ("document 3"); (c) email from Ms Ball to Mr Bennett dated 5 April 2004 ("document 4"); (d) file note of a conversation between Ms Ball and Mr Bennett on 2 April 2004 ("document 5"); (e) file note of a conversation between Ms Ball and Mr Bennett on 2 April 2004 ("document 6"); (f) facsimile transmission from Mr Bennett to Ms Parmeter dated 2 April 2004 ("document 7"); and (g) fax coversheet of facsimile transmission from Mr Bennett to Ms Ball dated 2 April 2004 ("document 8"). 18 The respondent also tendered into evidence an affidavit of Ms Allisar Katrib, solicitor, also employed by the respondent Department. This affidavit was sworn on 10 June 2005 and had attached to it a copy of the Affidavit affirmed by Ms Ball on 1 November 2004. That affidavit of Ms Ball was relied on by the respondent Department in its claim for privilege for the same documents that had been produced to the Industrial Relations Commission pursuant to the summons referred to in para. [4] above. Ms Katrib's affidavit also annexed a copy of the relevant pages of the transcript of the hearing before the Commission when it upheld the respondent's claim for privilege. During the planning meeting the applicant challenged the adequacy of Ms Ball's 1 November 2004 affidavit and it was on this basis that a further affidavit was provided on 21 September 2005. 19 In addition to the affidavits of Ms Ball and Ms Katrib the respondent provided to the Tribunal, on a confidential basis, a copy of the documents in issue. 20 In these applications the issues relating to privilege are ultimately questions of fact, namely whether the documents are or contain a confidential communication for the dominant purpose set out in para [14(a)(i)] or [14(a)(ii)] above. Accordingly, the critical evidence was that of Ms Ball, who was the person with the most direct knowledge of the circumstances in which the documents in issue came into existence. In this regard I found Ms Ball to be a forthright and truthful witness. It has at all times been her position that the surveillance documents that are common to both applications came into existence solely for the purpose of possible use in the proceedings that the applicant had commenced in the Industrial Relations Commission. As explained above, these proceedings were commenced on 5 May 2004. In cross-examination Ms Ball conceded that, at the time the proceedings had commenced, the respondent Department's position had been that no decision had in fact been made to dismiss the applicant from his employment as a correctional officer. He had been employed in this position in April 1999 and from October 2000 to December 2002 he had been in the Department's Drug Dog Detection Unit ("DDDU") as a drug dog handler. He was removed from this unit and transferred to general duties following assault charges having been laid against him. These charges were unrelated to his employment and were subsequently dismissed. The applicant then requested to be transferred back to the DDDU in August 2003. This transfer was refused and the applicant went on leave which was extended to leave without pay. During the early part of 2004, the applicant advised his supervisors that he was willing to return to the DDDU in April 2004. However, the respondent Department advised him that he was not to return to the DDDU and he was directed to return to general duties. This directive the applicant considered to be a constructive dismissal and he commenced proceedings in the Industrial Relations Commission accordingly. These proceedings however, were adjourned in order for the respondent Department to undertake disciplinary enquiries and to make a determination in respect of the applicant's employment with the Department. On 19 August 2004 the applicant was advised by Luke Grant, Acting Senior Assistant Commissioner Inmate and Custodial Services that he was dismissed on the basis of misconduct. 21 It was Ms Ball's evidence that she had no involvement in the disciplinary enquiries or the dismissal determination following those enquiries. These she said were dealt with in another area of the respondent Department. Her responsibility only related to the proceedings initiated by the respondent in the Industrial Relations Commission. She was also adamant that the eight surveillance documents, dated between July 2004 and August 2004 came into existence purely for possible use in the proceedings before the Commission and that she had not at any stage provided this information to those persons who were making disciplinary enquiries or the disciplinary determination. Nor to her knowledge had anyone else provided this information. 22 In respect to the other documents Ms Ball said the following: (a) on 2 April 2004, in the absence of her supervisor, a solicitor and the director of the branch, Ms Parmeter, she received a facsimile from Mr Keith Bennett, the staff officer at the Silverwater Correctional Centre requesting advice on the form of a lawful directive to the applicant in respect of his return to work. That facsimile is document 7. It is also noted that similar advice had been requested earlier on 20 February 2004 (document 2); (b) that as a result of that facsimile she had a telephone conversation with Mr Bennett and she made a file note of that conversation which is document 6; (c) on the same day she had another telephone conversation with Mr Bennett about the same issue for which advice had been sought. Again she made a file note of that conversation which is document 5; (d) on 5 April 2004 she sent an email to Mr Bennett in response to his request for advice of 2 April 2004. That email is document 4; (e) on 5 April 2004 Mr Bennett responded to Ms Ball's email of that day. That email is document 3, Consideration 23 I have considered all the material that is before the Tribunal and I have examined the exempt documents. 24 In respect to the eight surveillance documents, on the basis of Ms Ball's oral evidence, the respondent has satisfied me that these documents contain confidential communications between the respondent's in-house solicitors and a third party and that they came into existence for the dominant purpose of use or possible use by the respondent Department in the proceedings the applicant had initiated in the Industrial Relations Commission. Furthermore, there is no evidence to indicate that privilege has been waived. Indeed the evidence is to the contrary. Accordingly, the respondent has satisfied the Tribunal that they are exempt under cl.10 of Schedule 1 of the FOI Act. 25 In respect to the remaining documents, again on the basis of the evidence of Ms Ball and the contents of the documents, the respondent has satisfied the Tribunal that these documents contain confidential communications between the respondent and its in-house lawyers for the purpose of obtaining or giving legal advice about the applicant's request to return to work. Conclusion 26 For the reasons set out above the respondent has satisfied the Tribunal that the documents in issue are exempt. Accordingly the decision of the respondent is the correct and preferred decision: see s.63 Administrative Decisions Tribunal Act 1997. The Tribunal orders that the decision of the respondent the subject of review in File No. 053088 and 053281 is affirmed.

Ferns v Commissioner of Corrective Services

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (10)

Cited By (2)