FlyBlue Management Pty Ltd v NSW Crown Lands Department

NCAT Administrative and Equal Opportunity|2022-03-28

Introduction

On 26 April 2021, the applicant, FlyBlue Management Pty Ltd made an application for administrative review of a number of decisions made by the respondent, NSW Crown Lands Department under the Government Information (Public Access) Act 2009 (the GIPA Act).
On 25 October 2021, the respondent informed the Tribunal that while preparing for the matter it had become aware of a large number of documents that were potentially responsive to the applicant's access application that had not previously been decided.
At the 26 October 2021 hearing, the matter was remitted for reconsideration pursuant to s 65 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) however, both parties consented to proceeding with the hearing in relation to the decision to refuse access to 11 documents on the basis of a claim of legal professional privilege. In FlyBlue Management Pty Limited v NSW Crown Lands Department [2021] NSWCATAD 322 the Tribunal upheld the claims of legal professional privilege in respect of those 11 documents and affirmed the decision.
On 8 December 2021 the respondent, having reconsidered the matter as ordered by the Tribunal, varied the decision under review by providing access to an additional 673 documents in full and 174 documents in part, and refusing access to 89 documents in full. Of those documents refused either in part, or in whole, the respondent refused access to 80 of them in full and 16 in part, on the basis of a claim to legal professional privilege.
On 20 January 2022 the applicant notified the Tribunal that it wished to proceed with an administrative review of the respondent's decision as varied on 8 December 2021. On 25 January 2022 the applicant, in the course of a directions hearing, confirmed that it only sought administrative review of the decision as varied on 8 December 2021.
On 17 February 2022 the respondent partially released 2 documents that it had previously refused in full, maintaining the claim of legal professional privilege in respect of the unreleased portion of the 2 documents.

Background

This administrative review reveals a history that the respondent has acknowledged to be "a considerable and unfortunate delay in the discovery of a large volume of documents responsive to the applicant's access application".
The history of delay and the somewhat sporadic release of information, was such that the Information Commissioner, while not making any application at this hearing nor seeking to exercise its referral power, nevertheless saw fit to express a concern that, "The agency's actions in this case suggest it has not put in place adequate systems to ensure compliance with the search requirements in the GIPA Act".

Issue

The circumstances of the sudden release of the additional material gave rise to real concerns for the applicants, particularly relating to the late discovery of emails to and from certain individuals that were recovered from different parts of the Information Technology (IT) areas of the respondent. Some of this material was said to be from archives that had not been properly searched at the relevant time and some contained in another IT system that was for legal officers alone. The applicants were also concerned that one of the documents subsequently partially released (document 958) contained material that was inconsistent with the claim of privilege in other documents.
The applicants were also concerned that one of the documents had been deliberately withheld from them until they were issued with an eviction notice that they could have successfully resisted had they had access to that document at the relevant time. The applicants suggested that taken together these various concerns gave rise to a reasonable suspicion the delay in releasing information was a calculated ploy by the respondent.
It is understandable that the delays and sporadic releases of information would trouble the applicants, not to mention the Information Commissioner. The applicants invite me to consider those various matters and to infer from them that the legal professional privilege (LPP) claim is not genuine and is part of a ploy to deny them the full information which would enable some form of remedy against the respondent.
The question of LPP is the issue in this matter. The applicants various concerns, while understandable, are only relevant to consideration of the claims of LPP for the 96 documents in question, for which the applicants have confirmed they seek administrative review.

The Application

On 4 May 2020, the applicant made an application to the respondent for information in relation to the following: "third-party, internal and inter-departmental correspondence and communications with respect to Katoomba Airfield, 178-180 Grand Canyon Road, Medlow Bath, NSW, Lot 550 DP751627, and the proposed long-term lease from 1 May 2019 until 1 May 2020.Particular reference is made to any correspondence that references the Call for Expressions of Interest process, EOI submissions received, the evaluation process, current Licence No RI 592134 and all correspondence and communication with respect to the community consultation proposed and undertaken, and any and all correspondence that relates to the current licensees Derek and Floyd Larsen and/or FlyBlue Management Pty Ltd."

Jurisdiction

I am satisfied that the respondent's decision to refuse access to information in response to the applicant's access application is a decision which is reviewable by the Tribunal pursuant to s80(d) of the GIPA Act. Further, I am satisfied that the Tribunal has jurisdiction to conduct this review pursuant to s 100 of the GIPA Act, read with ss 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and s 9 of the ADR Act. The respondent bears the burden of establishing that its decision to refuse access is justified: s 105(1) of the GIPA Act.

Material before the Tribunal

The respondent relied on the following material: 1. A statement of Cathrine Coren dated on 17 February 2022. 2. A confidential bundle of documents, containing the 96 documents that are subject to the claim of legal professional privilege. 3. A written outline of submissions received by the Tribunal on 23 March 2022 and oral submissions made in open hearing.
The applicant relied on written submissions provided to the Tribunal on 10 March 2022 and further oral submissions made at the hearing.
Ms Cathrine Coren is a Director Legal, in the Governance and Legal Division of the Department of Planning and Environment. In preparing her statement Ms Coren "relied upon my direct knowledge and on my review of the relevant business records of the Department". Ms Coren stated she "had not been personally involved in the Departmental legal matters relating to Katoomba Airfield". She stated that she reviewed the "documents in dispute".
Ms Coren's statement identifies each of the 96 documents and provides a description of them, either singly or in groups, depending upon the context and content of each document. Those descriptions extend over some 18 paragraphs of her statement. I will not repeat them. Essentially they describe correspondence between legal officers, both internal and from the Crown Solicitor's office, and Departmental officers.

Legislation

Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).
Section 14(1) of the GIPA Act requires that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Sch 1 to the GIPA Act. Relevantly, Clause 5(1) of Sch 1 provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
The clause refers to legal professional privilege and uses the phrase "client legal privilege", that phrase is used in the Evidence Act 1995 (NSW) (Evidence Act). There remains an unresolved issue as to the appropriate test for privilege - that is s 122 of the Evidence Act or the common law position set out in Mann v Carnell (1999) 201 CLR 1. In Transport for NSW v Robinson [2018] NSWCATAP 123 at [43], the issue was raised before the Appeal Panel and the Appeal Panel determined in that case that it was not necessary to decide the issue.
The respondent has addressed the question of privilege by reference to the provisions of the Evidence Act. Such an approach is consistent with Colefax v Department of Education and Communities [2013] NSWADT 75, at [26] and Saggers v Environment Protection Authority [2014] NSWCATAD 37, at [26].
I am satisfied that in this case the application of common law principles would not produce a different result in this matter and have considered the matter according to the test in the Evidence Act.
Section 118 of the Evidence Act deals with privilege in the context of the provision of legal advice and litigation 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 confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, 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 of the Evidence Act contains the following relevant definitions: client includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, … confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. …
In Jackson v University of New South Wales [2019] NSWCATAD 224, the Tribunal provided the following summary of the position where the client is a government agency and the lawyer is employed by that agency: 105. Ultimately it is a question of fact as to whether a professional relationship exists between the client employer and the in-house lawyer and whether the in-house lawyer was consulted in his or her professional capacity: see and Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445, at [35] to [41]. Where advice is requested or given out-side this professional relationship the information is not privileged. 106. Even where a client-lawyer professional relationship is found to exist, this does not mean that every communication between the lawyer (including the employed legal practitioner) and the client (including a government agency) is thereby privileged. It is only those communications or documents that are confidential and made or prepared for the 'dominant purpose' of the lawyer (in his or her professional capacity) providing legal (professional) advice to the client, or for the dominant purpose of the client being provided with professional legal services relating to litigation.
The expression "dominant purpose" was considered in Archer Capital 4A Pty Ltd v Sage Group plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384 at [11], Wigney J stated: A dominant purpose is a reference to "the ruling, prevailing, or most influential purpose": Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416. It is a purpose that predominates over other purposes; the prevailing or paramount purpose: AWB Ltd v Cole (2006) 152 FCR 382 (AWB) at [105]-[106]. The purpose for which a document is brought into existence is a question of fact that must be determined objectively, however evidence of the subjective purpose will be relevant and often decisive: Esso at [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Pratt) at [35].

Decision and findings

It is understandable that the delay and sporadic release of information has been of great concern to the applicants and has given rise to their submission that it was "both deliberate and intentional". However, there is nothing in the evidence before me to indicate any bad faith, or impropriety, or attempted 'cover-up' on the part of any of the Department officers involved. Rather, it appears, as noted by the Information Commissioner in her submission, "The agency's actions in this case suggest it has not put in place adequate systems to ensure compliance with the search requirements in the GIPA Act". However, that situation was cured by the search that resulted in the 8 December 2021 disclosures of information.
I have read the 96 documents in issue at length and in detail. I am satisfied that Ms Coren's statement is accurate and correct in its description of the documents. It is clear on the face of the records and from the context in which they were created, that they are intended to be confidential in nature and they contain, or are for the dominant purpose of providing, legal advice to the Department.
I find that the 96 documents numbered 44, 584, 587-591, 596, 600, 615-616, 620, 723, 726, 734, 736-738, 742-744, 746-750, 753, 755-761, 764-766, 773. 781784, 790. 792-795, 803-804, 810-812, 827, 844, 846, 849, 854-856, 863, 867-868, 871-873, 876-877, 879-883, 889-895, 907-908, 911-913, 915-916, 918-919, 958, 968, 975, 977-979, 985 and 986, are subject to privilege, within the meaning of cl 5(1) of Sch 1 of the GIPA Act. The communications are between various lawyers and members of the Department who I am satisfied are 'clients' within the definition in the Evidence Act. On their face, the documents appear to be prepared for the dominant purpose of the lawyers providing legal advice to members of Crown Lands and the parties to the written correspondence. The headings to the documents, being "Privileged and Confidential" and/or "Sensitive: Legal" indicate that the parties to the written advice understood that these were confidential communications.
Disclosure of the 96 documents to the applicants would reveal the matters that the legal advice was required to address. In my view, such disclosure would be "privileged from production" for the purposes of cl 5(1) of sch 5 to the GIPA Act. There is nothing to suggest that the privilege has been waived. It follows that the claim based on legal professional privilege has been made out and there is a conclusive presumption of an overriding public interest against disclosure of the information in those documents.
In light of the above matters, I find that the respondent made the correct and preferable decision when it refused access to the 96 documents on the basis that they were subject to an overriding public interest against disclosure, as privileged information.

Order The Tribunal affirms the respondent's decision of 8 December 2021 to refuse access to documents subject to a claim of legal professional privilege in relation to the 96 documents identified as Documents: 1. 44, 584, 587-591, 596, 600, 615-616, 620, 723, 726, 734, 736-738, 742-744, 746-750, 753, 755-761, 764-766, 773. 781784, 790. 792-795, 803-804, 810-812, 827, 844, 846, 849, 854-856, 863, 867-868, 871-873, 876-877, 879-883, 889-895, 907-908, 911-913, 915-916, 918-919, 958, 968, 975, 977-979, 985 and 986.

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: 24 May 2022

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (4)

Cases Cited (13)