Solicitors:
Mr J Haddad (as agent for the Applicant)
Crown Solicitors Office (Respondent)
File Number(s): 1510454
[2]
INTRODUCTION
In this matter the respondent served upon the applicant, as is required, a bundle of documents pursuant to s.58 of the Administrative Decisions Review Act 1997. It is asserted by the respondent that the bundle of documents contains documents within the possession of the respondent that the respondent considers to be relevant to the determination of the matter, in respect of which the respondent claims are subject to legal professional privilege and as such resists their production to the Tribunal (other than for the purpose of determining the privilege claim) and to the applicant.
On 15 December 2012, the matter was listed before me for hearing of the privilege claim. The applicant's husband, Mr Jim Haddad, appeared to assist the applicant. No objection was taken to that course and I allowed him leave to appear on her behalf for the purposes of determining the claim for privilege.
The respondent asserts a claim of privilege pursuant to s.118 and s.119 of the Evidence Act 1995 ("the Act") respectively on grounds set forth in the affidavit of Holly Morgan dated 7 September 2015, which was admitted without objection.
The applicant has raised three concerns in respect of the claim for privilege. First, she has not seen the documents the subject of the claim and thus cannot know how important they may be to her case; second, the claim is being made by a governmental body and as such she is concerned that it may not be acting ethically in making the claim; and third, she is concerned that the actions of the respondent were undertaken with a view to stymying the litigation in related Supreme Court proceedings.
In those circumstances, and acknowledging that the applicant is not legally represented in these proceedings, it was agreed between the parties that I ought undertake a review of the documents with a view to indicating my preliminary view as to whether or not the documents are privileged and once that had occurred, the matter would be stood over for further oral argument on 9 February 2016.
Accordingly on 29 January 2016, I informed the parties of my preliminary view of the documents. In that indication I did not seek in each case to make a detailed ruling in respect of each document or set out with any detail the particular subsection of s.118 or s.119 of the Act, that the documents fall within, but rather dealt with the documents in categories. Indeed in many cases, the documents arguably fall within a number of subsections. Neither party has sought reasons for my ruling in respect of each document. Accordingly I have not sought to provide reasons in respect of each document, but have rather dealt with the documents in their relevant categories.
When the matter was listed for further argument on 9 February 2016, the applicant sought an adjournment, as Mr Haddad had fallen ill. The respondent consented to the adjournment and the matter was again listed for further argument on 5 April 2016, with directions being made for the matter to proceed on the papers if the parties consented to that course, and with any further submissions to be put in writing. The parties complied with those orders and filed written submissions.
On 4 April 2015 the parties indicated that they wished to proceed on the basis of the oral argument that had already taken place and otherwise on the written submissions. Apart from one matter, I have acceded to that application.
On 5 April 2015, Mr Haddad appeared by telephone. Mr Rider again appeared for the respondent. It was agreed that the determination of the privilege claim could take place without the need for further oral argument. The one matter that I raised was in respect of what ought happen to the documents now that they have been seen by me for the purposes of determining the privilege claim. Mr Haddad had proposed in the applicant's written submissions that the documents ought be destroyed to avoid them being read by any member of the Tribunal who ultimately determines this matter. During the course of oral argument however it was agreed between the parties that the documents ought be returned to the respondent.
The only further matter in respect of the claim for privilege over the documents put by the applicant in the written submissions dated 29 March 2016 was that as a result of the privilege being upheld, the determination of this matter will not be based on all of the relevant evidence. The respondent's written submissions dated 30 March 2016 correctly point out that this contention does not challenge the basis of the respondent's claim for privilege. The respondent submits that there is no reason for me to depart from my preliminary view of the documents other than to assert that ss. 118 and 119 of the Evidence Act apply to all of the documents.
[3]
DETERMINATION OF THE PRIVILEGE - SECTIONS 118 AND 119 OF THE EVIDENCE ACT
Exhibited to Ms Morgan's affidavit (Exhibit HM-1) is a confidential exhibit, which contains a copy of the documents the subject of the privilege claim. I have been invited where necessary to view those documents in order to determine the privilege claim.
Annexed to the affidavit, which was not confidential, is a table listing all of the documents contained in Confidential Exhibit HM-1 ("Annexure "A""). Annexure "A" reveals that there are 67 documents, the subject of the privilege claim. In all but three cases (being documents 48, 49 and 55 respectively) the claim is made in respect of s.118 of the Act only. In respect of those three documents, a claim is also made pursuant to s.119 of the Act. However, I note the submission that is now made, that the documents are all the subject of privilege pursuant to both ss. 118 and 119 of the Act.
Section 118 of the Act provides as follows:
118 Legal advice
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
(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 119 of the Act provides as follows:
119 Litigation
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 between the client and another person, or between a lawyer acting for the client and another person, that was made, or
(b) the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
[4]
A REVIEW OF THE DOCUMENTS
Annexure "A" also reveals the following matters:
1. The author of the document;
2. The recipient(s) of the document
3. A brief document description; and
4. The date of the document.
Documents 1, 2, 3, 8, 9, 10, 13, 15, 18, 23, 25, 29, 30, 34, 38, 39, 41, 42, 48, 50, 51, 54, 57, 59, 61, 62, 63 and 67 are all documents of or evidencing communications between officers of the Crown Solicitor's Office and Counsel appearing in the matter (and in some instances conveying that communication also to officers of the lawyers' client ("the respondent"). I would uphold the claim for privilege in respect of those documents under s.118 of the Act, as they are clearly confidential communications between lawyers (and in some cases also officers of the respondent) created for the dominant purpose of providing legal advice to the respondent in this matter.
Documents 4, 5, 6, 20, 24, 28, 37, 43, 46, 53, 55, and 64 are all documents of or evidencing communications from officers of the respondent to officers of the Crown Solicitor's Office (and in some instances conveying that information also to other officers of the respondent). I would uphold the claim for privilege in respect of those documents under s.118 of the Act, as they are clearly confidential communications providing instructions from the respondent to his legal advisors for the purpose of obtaining legal advice in this matter.
Documents 7, 11, 12, 14, 16, 19, 21, 26, 27, 31, 32, 33, 35, 36, 40, 44, 45, 47, 49, 52, 58, 60, 65, 66, are all documents of or evidencing communication from officers of the Crown Solicitors office to officers of the respondent (and in some cases, also to other legal advisors engaged by the respondent). I would uphold the claim for privilege in respect of these documents under s.118 of the Act, as they are clearly confidential communications providing legal advice to the respondent in respect of the matter.
Documents 22 and 56 are not communications directly between the respondent and his lawyers, although in both cases, the communication between officers of the respondent is copied to the legal advisors.
Document 22 is from one officer of the respondent to another and copied to the respondent's lawyers. A careful review of this document makes it clear that it is created in response to a request from the legal advisors for instructions in respect of the matter. Accordingly I would uphold the claim for privilege in respect of this document under s.118 as it contains confidential communications prepared for the dominant purpose of providing instructions for legal advice in respect of the matter.
Document 56 purports in Annexure A to be an email from an officer of the respondent to another officer of the client and "blind" copied to an officer of the Crown Solicitor's Office dated 25 September 2013 regarding the applicant's objection. A review of the document does not reveal it to have been "blind copied" to the lawyers, however, it is a confidential communication which has been created for the purpose of obtaining legal advice in respect of the matter and accordingly I would, in any event uphold the claim for privilege pursuant to s.118 of the Act.
Document 17 purports in Annexure A to be an email from an officer of the respondent to an officer of "Land and Property Information". A claim of "part privilege" is claimed in respect of this document. It is clear that some documents are, on their own, not privileged, however, the provision of them with a request for instructions and advice, would clearly be privileged pursuant to s.118. Accordingly, I would uphold this claim of privilege over all of document 17.
Documents 48, 49 and 55 were initially the only documents that were the subject of a claim of privilege pursuant to s.119 of the Act, as being prepared for the purpose of litigation. A review of those documents makes it readily apparent that they are prepared for the purpose of litigation. Accordingly I would also uphold privilege in respect of those documents pursuant to s.119 of the Act.
Given the view that I have come to about the balance of the documents being the subject of privilege pursuant to s.118, I have not needed to decide whether or not they are also privileged pursuant to s.119 of the Act.
[5]
DEALING WITH THE APPLICANT'S CONCERNS
The fact that the applicant has not seen the documents the subject of the claim for privilege is most usual where claims for privilege have been made. Indeed if the documents are provided to the applicant there is an argument that the privilege claimed has been waived.
Where, as in some cases, the description of the document has not been sufficient to determine whether or not it is privileged, it is also usual for the Tribunal to review the documents and come to a view about them without the applicant seeing the documents. Indeed, a court has the power to examine documents that are the subject of a client legal privilege claim (s 133 of the Evidence Act). I have not come to a view at this stage as to whether or not s.133 of the Act is binding on the Tribunal as both parties have consented to me examining the documents to determine the claim.
The fact that the claim for privilege is being made by the Crown Solicitors Office on behalf of the Commissioner for State Revenue is not concerning. All parties to litigation have the right to claim privilege in respect of confidential communications (in any form, including text messages, emails, file notes and the like) for the purpose of preparing their case. The purpose of the privilege is so that any party to litigation, whether or not they form part of a government department, is encouraged to speak freely and confidentially with his or her respective legal advisers and with each other about the case without concern that they would be obliged to reveal those matters to the other party to the litigation.
The respondent is a "model litigant" and as such has an obligation to act more than merely honestly, and in accordance with the law and the Tribunal's rules, and in line with ordinary ethical obligations. It also requires that the respondent and his lawyers act with complete propriety, fairly and in accordance with the highest professional standards in the conduct of the litigation. However, that obligation does not prevent the respondent from relying on proper claims of legal professional privilege.
The applicant's concerns that the actions of the respondent were undertaken with a view to stymying the litigation in related Supreme Court proceedings were expressed by the applicant in submissions. It is a serious allegation and there was no evidence tendered to support it. Further, it is not a matter in respect of which I can comment and it would be improper for me to do so, other than to make it clear that in my view the documents fall within the relevant provisions of the Act articulated above.
[6]
THE DETERMINATION
I determine that the documents numbered 1 to 67 described in the schedule attached to Ms Morgan's affidavit are privileged and need not be produced to the applicant.
I direct that the confidential Exhibit HM-1 and any copy retained by the Tribunal be returned to office of the Crown Solicitor.
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: 14 April 2016