Fitzpatrick v NSW Office of Liquor and Gaming - [2004] NSWSC 917 - NSWSC 2009 case summary — Zoe

NSWNSWSC

Fitzpatrick v NSW Office of Liquor and Gaming

[2004] NSWSC 917

Supreme Court of NSW|2009-06-10|Before: Molony P, Urguhart J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2009-06-10

Before

Molony P, Urguhart J

Source

Original judgment source is linked above.

Judgment (204 paragraphs)

[1]

Background 1 Greyhound racing is one of three racing codes in New South Wales: greyhound racing, harness racing and thoroughbred racing. The department responsible for government oversight of the racing industry and the development of policy is the NSW Office of Liquor Gaming and Racing (OLGR).

[2]

2 Greyhound Racing New South Wales (GRNSW) is a body corporate established by section 6 of the Greyhound Racing Act 2002 (the GRA). That Act has since been repealed and replaced by the Greyhound Racing Act 2009, although all the actions and decisions taken by GRNSW to which these matters relate took place under the GRA.

[3]

3 The GRA provided by section 7 that GRNSW did not represent the Crown, was not subject to direction or control by the Government, and could not render the State liable for any of its debts or obligations, unless express legislative provision was made to the contrary. The membership of GRNSW was provided for by section 8. It was essentially representative, with various industry bodies and groups, such as clubs and the industry, able to nominate specified members to GRNSW, with an independent Chair. The functions of GRNSW were set out in section 10: '(1) GRNSW has the functions conferred or imposed on it by or under this or any other Act or law. (2) Without limiting subsection (1), the functions of GRNSW include the following: (a) to register greyhound racing clubs and greyhound trial tracks, (b) to initiate, develop and implement policies considered conducive to the promotion, strategic development and welfare of the greyhound racing industry in the State, (c) to distribute money received as a result of commercial arrangements required by the Totalizator Act 1997 , (d) to allocate the dates on which greyhound races may be conducted, (e) to develop and review policy in relation to the breeding and grading of greyhounds. (3) GRNSW may affiliate with such organisations, whether in or out of New South Wales, as GRNSW considers appropriate. (4) Nothing in this Act confers on GRNSW power to conduct meetings for greyhound racing on its own behalf.'

[53]

57 OLGR made the following submissions with respect to the documents in issue: '25 Document A5 is a submission to the Minister, attaching a draft Cabinet minute and enclosing a draft letter to the Premier enclosing the Cabinet Minute, the draft minute itself and the statutory report of Gambling and Racing Acts published in November 2004. The draft Cabinet Minute is plainly exempt under clause. 1(1)(b). It is expected that the Minister will consider and raise the issues in Cabinet the matters that were canvassed with him in the briefing note which attached the draft Cabinet Minute. Similarly, the draft letter to the Premier, which attaches the Cabinet Minute, would canvass matters that were ultimately deliberated upon by Cabinet. Consistent with the approach taken in McGuirk v Director General, The Cabinet Office, these documents are therefore exempt under cI. 1(1)(e). 26 Document A6 attached a copy of the draft Cabinet Minute and the covering Departmental brief to the Director General refers briefly to the contents of that Minute. The draft is plainly exempt under clause. 1(1)(b), while the reference to the Cabinet Minute is exempt under clause. 1(1)(e). 27 Document A7 contains extracts from the draft Cabinet Minute and so is exempt under clause. 1(1)(c). 28 Paragraph 2 of Document A9 refers to the contents of the proposal to Cabinet. As such, release would reveal the deliberations of Cabinet, making the document exempt under clause. 1(1)(e). … Document 38 is a copy of the Department's submission to the Minister and attaches the Executive Council Minute. The submission attaches the signed copy of the Executive Council Minute. In Cianfrano v Department of Premier and Cabinet [2008] NSWADT 141 at [55], the Tribunal held that an approved Executive Council Minute is a document submitted to the Executive Council (so that clause 2(1)(a) applies), is an official record of the Council (so that clause 2(1)(d) applies), and that release of the document would reveal the deliberations or advice of the Council (so that clause 2(1)(e) applies). The same analysis should be adopted here. The copies of the proclamation, opinion of parliamentary counsel, regulations and explanatory note, which were attached to the Executive Council Minute are exempt on the same basis. On their face, the letters from the Minister for Gaming and Racing to the Premier and Minister for Regulatory Reform deal with the promulgation of the Regulations by the Executive Council and so would disclose information concerning any deliberation or advice of the Council and are exempt under clause. 2(1)(e).

[72]

76 On appeal the Full Court held, at [15] to [24]: "15 The relationship between the State and Parliamentary Counsel may be one of client and lawyer: see Waterford v Commonwealth (1987) 163 CLR 54, 60-2 per Mason and Wilson JJ. If advice were sought of and given by Parliamentary Counsel in relation to the drafting and preparation of draft legislation, this would qualify for legal advice privilege: see Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 at 652 [41]; and WorkCover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502 at 521 [74]. This seems to be accepted by the parties. 16 The question then arises as to the scope of the retainer between the State and Parliamentary Counsel in circumstances where Parliamentary Counsel is asked to prepare draft legislation. The scope of a retainer may not be confined to the client's express instructions. Matters which would reasonably arise in the course of carrying out express instructions should be regarded as coming within the scope of the retainer. … 21 Similarly with preparing draft legislation, either in the form of an Act of Parliament or a regulation. Parliamentary Counsel do not merely type or format the legislation. Parliamentary Counsel apply legal skill and knowledge to give written expression to the policy underlying the proposed legislation. Parliamentary Counsel would be expected, and perhaps under a duty, to advise upon the legality or effectiveness of the legislation being sought by the instructors. In the case of subordinate legislation, if regarded as beyond power, Parliamentary Counsel would presumably advise of this view. Similarly, if an Act of Parliament was considered unconstitutional, or inconsistent with another Act of Parliament, this is a matter Parliamentary Counsel would be expected to advise upon, even if the only express instruction was to draft the legislation. … 22 Where no problem of this kind arises, Parliamentary Counsel, in drafting the legislation and presenting the draft to the government agency, is in effect advising that the draft legislation is in accordance with the instructions given and gives legal effect to those instructions. The draft itself is not the legal advice, but the communication in providing the draft legislation contains implicitly the advice of Parliamentary Counsel endorsing the draft legislation as being effective and valid."

[87]

Waiver 91 Section 122 of the Evidence Act 1995 relevantly provides: '(1) … (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: (i) in the course of making a confidential communication or preparing a confidential document, or (ii) … (iv) if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).'

[88]

92 This provision is said to represent a legislative attempt to more closely align s 122 with the common law of waiver of legal professional privilege, as expounded in Mann v Carnell (1999) HCA 66: see Explanatory Note to Sch. 1 item [57] of the Evidence Amendment Bill 2007. In that case Gleeson CJ, Gaudron, Gummow and Callinan JJ said at [28 and 29]: 'Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and the maintenance of the confidentiality which affects a waiver of the privilege [34]. Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law' [37]. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank [38], the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the banister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

[94]

98 In Osland v Department of Justice [2008] HCA 37 the Victorian Attorney-General had released a press release in which he advised that he had received advice from three named Senior Counsel that a petition of mercy should be denied. The Court found that the privilege was not waived. Gleeson CJ, Gummow, Heydon and Keifel JJ said at [48-49]: 'The evident purpose of what was said in the press release was to satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations. The three eminent lawyers who gave the advice were appointed following consultation with the State Opposition. They were external to the Department. Their advice covered all the grounds upon which the petition was based. They recommended denial of the petition. Their advice was carefully considered, and the petition was denied. The Attorney-General was seeking to give the fullest information as to the process that had been followed, no doubt in order to deflect any criticism, while at the same time following the long-standing practice of not giving the reasons for the decision. This did not involve inconsistency; and it involved no unfairness to the appellant. If she had a legal right to reasons for the decision, then she still has it. If she had no such right, the press release did not deprive her of anything to which she was entitled. What the Attorney-General said did not prevent the appellant from making public her petition, or any part of it, as and when she desired. Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd [26], questions of waiver are matters of fact and degree. It should be added that we are here concerned with the common law principle of waiver, not with the application of s 122 of the Evidence Act 1995 (Cth) which, as was said in Mann v Carnell[27], has the effect that privilege may be lost in circumstances which are not identical to the circumstances in which privilege may be lost at common law[28].'

[176]

184 In Public Service Association and Professional Officers Association, Amalgamated Union of NSW -v- Director General, Premier's Department [2002] NSWADT 277 the Tribunal considered what was necessary to satisfy the requirements of clause 13(a): "52 In Re B and Brisbane North Regional Health Authority (1993) 1 QAR 279 it was held that the words "for an action of breach of confidence in the Queensland FOI Act should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: (i) a cause of action for breach of an obligation of confidence; (ii) a cause of action for breach of a contractual obligation of confidence; (iii) a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence. 53 It was further held that the test of exemption was to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff in respect of information held by the agency to which the relevant FOI application was made. If the hypothetical cause of action was an equitable action for breach of confidence, five matters had to be established: first, the information must be capable of being specifically identifiable as information which is secret rather than generally available; second, the subject matter of the obligation of confidence must not be trivial or useless or generally known; third, the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way; four, it must be established that the disclosure of the information would constitute an unauthorised disclosure; and, five, it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment. 54 In Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434, the majority held that the Federal equivalent of clause.13(a) conferred exempt status on "a document which contains confidential information received under circumstances importing an obligation of confidence, without regard to those considerations of public policy [such as "just cause" and "clean hands"] which courts have allowed an influence in determining whether to grant or withhold remedies for "breach of confidence" in exercise of equitable or common law jurisdiction." (See Jenkinson J at 438 and also Sweeney J at 435.)"

[191]

200 This is the Clause 1 Cabinet Clause 2 Executive Council A1 * * A2 * * A3 * * A4 * * A5 E * A6 E * A7 E * A8 * * A9 E * A10 * * 2 * * 3 * * 4 * * 5 * * 6 * * 7 * * 8 * * 9 * * 10 * * 12 * * 13 * * 14 * * 15 * * 17 * * 18 * * 19 * * 20 * * 21 * * 22 * * 23 * * 24 * * 25B * * 26 * * 28 * * 29 * * 30 * * 31 * * 32 * * 33 * * 34 * * 35 * * 36 * * 37 * * 38 * E 42 * * 43 * * Table with respect to OLGR's documents: Clause 7 Business Affairs Clause 9 Internal Working Docu-ments Clause 10 Legal Professional Privilege Clause 13 Confidential Information Clause 16 Operation of Agencies * NE * NE * * NE * NE * * NE * NE * * * E * * * * * * * * * E * * * * E * * * * E * * * NC-OE * * * * NE E * * * NE * * * * NE * NE * * NE E NE * * NE * NE * * NE E NE * NE NE * * NE E NE * * NE E NE * * NE * NE * * NE E NE * * NE PE NE * * NE PE NE * * NE PE NE * * NE PE NE * * NE E NE * * NE * * * * NE * NE * * NE E NE * * NE E NE * * NE PE NE * * NE E NE * * NE NE NE * * NE E * * * NE E NE * * NE E * * * NE E * * * NE E NE * * NE E * * * NE E * * * NE E NE * * NE E * * * NE E NE * * NE E NE * * NC-OE NC-OE * * * NE * NE * * * PE * *

Parties

Applicant/Plaintiff:

Fitzpatrick

Respondent/Defendant:

NSW Office of Liquor and Gaming

Legislation Cited (4)

Betting Control Act 1954(WA)

Freedom of Information Act 1982(Cth)

Evidence Act 1995(NSW)

Evidence Act 1995(Cth)

Cases Cited (25)

CITATION: Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 This decision has been amended. Please see the end of the decision for a list of the amendments.

Ashfield Municipal Council v RTA [2004] NSWSC 917 Attorney-General's Department & Anor v Cockcroft (1986) 10 FCR 180 AWB v Cole [2006] FCA 1234 Betfair Pty Limited v Western Australia [2008] HCA 11 Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140 Cianfrano v Department of Premier and Cabinet [2008] NSWADT 141 Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 FCT v Pratt Holdings (2004) 136 FCR 357 General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39 Hawker v Premier's Department unreported, District Court, NSW, Urguhart J, 17 December 1990 CASES CITED: Howell v Macquarie University [2008] NSWCA 26 IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79 Macquarie University v Howell [2009] NSWADTAP 12 Mann v Carnell (1999) HCA 66 McGuirk v University of New South Wales; University of New South Wales v McGuirk [2009] NSWCA 321 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 McMahon v Director General, Department of Fair Trading [2003] NSWADT 164 Ministry of Transport [2007] NSWADT 236 National Parks Association of New South Wales Inc v Department of Lands [2005] NSWADT 124 Osland v Department of Justice [2008] HCA 37 Public Service Association and Professional Officers Association, Amalgamated Union of NSW -v- Director General, Premier's Department [2002] NSWADT 277 Re B and Brisbane North Regional Health Authority (1993) 1 QAR 279 Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588 Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160 Waite v Hornsby Shire Council [2007] NSWADT 265

[2007] VSCA 11

(1986) 10 FCR 180

(1987) 14 FCR 434

(1979) 46 FLR 409

(2004) 136 FCR 357

(2006) 65 NSWLR 502

(2006) 228 CLR 423

(1999) 201 CLR 49

(1987) 163 CLR 54

(1987) 61 ALJR 393

[2008] HCA 11

[2009] FCA 1140