On 14 April 2022, Garth Brenton Jackson (the Applicant) made an application to the Commissioner for Fair Trading (the Respondent) under the Government Information (Public Access) Act 2009 (the GIPA Act) for access to the following information:
1. Copy of all Information regarding the DFTs determination that clause 2.3.1 of AS 1926.1 (2012) has application to a boundary barrier.
2. Copy of all information relied upon by the DFT to make the determination that clause 2.3.1 of AS 1926.1(2012) does apply to a boundary barrier.
3. A copy of all information considered by the DFT to make the determination that clause 2.3.1 of AS 1926.1(2012) does apply to a boundary barrier.
4. A copy of all information regarding Standards Australia's ruling issued in November 2021 with respect to clause 2.3.1 of AS 1926.1(2012) not applying to a boundary barrier.
5. A copy of all information, documents or submissions received by the DFT with regards to the application of clause 2.3.1 of AS 1916.1(2012) to a boundary barrier.
6. A copy of any documentation disputing the application of clause 2.3.1 of AS 1926.1 (2012) to a boundary barrier.
7. A copy of all internal and external communications, meetings, etc regarding the application of clause 2.3.1 of AS 1926.1(2012) to a boundary barrier.
8. A copy of all Cert Alerts and website releases (including variations to) regarding the application of clause 2.3.1 of AS 1926.1(2012) to a boundary barrier.
9. A copy of approved training materials under the former El Certification Course and the now Swimming Pool Inspector course with respect the application of clause 2.3.1 of AS 1926.1(2012) to a boundary barrier.
10. A copy of all approved continuing professional development education material regarding the application of clause 2.3.1 of AS 1926.1(2012) to boundary barriers.
11. A copy of all legal advice received by the DFT or its predecessor, the Building Professionals Board, with respect to the determination that clause 2.3.1 of AS 1926.1(2012) applies to a boundary barrier.
On 31 May 2022, the application was determined providing partial access to the information held by the Respondent (the original decision). On 27 June 2022 the Applicant sought internal review. On 5 August 2022, the Respondent's delegate issued an internal review decision providing partial access to the information held by the Respondent, withholding by redaction some of that information on the grounds that information was either "personal information" or "confidential information". The Respondent also refused to deal with the access application request at items 5 and 7 on the basis that doing so would cause an unreasonable and substantial diversion of its resources, pursuant to s 60(1)(a) of the GIPA Act.
On 19 September 2022 the Applicant sought administrative review in this Tribunal of the Respondent's reviewable decision. As a result of the Tribunal's case management of this matter, the Applicant clarified that he did not press for the release of redacted information, which was irrelevant to his access application, or for personal contact details which were not publicly available.
The Applicant initially pressed for the release of information which the Respondent resisted on two grounds:
1. Certain documents were withheld on the grounds that information is subject to a claim for, or is 'in the ambit' of, client or legal professional privilege (LPP); and
2. Compliance with the ambit of the access application in relation to Items 5 and 7 would result in an unreasonable and substantial diversion of its resources.
The hearing took place on 17 July 2023, 10 October 2023 and 20 November 2023. A confidential session was held in the absence of the Applicant on 20 November 2023, prior to the parties' oral closing submissions, for the purpose of the Respondent providing the Tribunal with evidence of the information over which it made claims of LPP.
The Applicant relied on the following:
1. Application dated 19 September 2022;
2. Statement of Garth Brenton Jackson dated 22 November 2022 with 9 tabbed annexures;
3. Affidavit of Garth Brenton Jackson dated 23 June 2023 with 18 annexures;
4. Fact Sheet from the Information and Privacy Commission on "Unreasonable and Substantial Diversion of Agency Resources";
5. Excerpt from CPD training on AS 1926.1-2012;
6. Copy of Standardisation Guide 003: standards and Other Publications by Standards Australia.
The Respondent relied on the following:
1. Correspondence regarding the access application dated 22 April 2022, 29 June 2022;
2. Affidavit of Mark Matthew Kelly dated 23 May 2023;
3. Affidavit of Dominic Wong dated 24 May 2023;
4. Affidavit of Anthea Fairall dated 25 May 2023;
5. Supplemental Affidavit of Anthea Fairall dated 11 July 2023;
6. Supplemental Affidavit of Anthea Fairall dated 18 August 2023;
7. Spreadsheet of GIPA time and Charges Estimate;
8. Confidential bundle containing withheld information without applied redactions.
The Tribunal notes that a large proportion of the Applicant's Statement and Affidavit was in the nature of submissions, rather than evidence. Specifically:
1. Paragraphs 5 - 12, 22-25, 31 - 52, 55 - 61, 62 - 75, 77-87, 90-95 of the Statement dated 22 November 2022; and
2. Paragraphs 8 - 22, 35 - 37, 55, 45, 56, 81-83 of the Affidavit dated 23 June 2023.
Those specified paragraphs have been considered by this Tribunal as the Applicant's written submissions, additional to the Applicant's open outline of submissions received 23 June 2023.
During the hearing the Applicant submitted that he did not understand the basis upon which the Respondent had calculated how long it would take it to collate and review the information caught by items 5 and 7 of the access application, estimated by the Respondent at over 80 hours. This evidence was then provided to the Applicant and the Tribunal, with a complete breakdown of the estimate and the basis of the Respondent's calculations. The Respondent gave detailed oral submissions as to why fulfilling the Applicant's request for those documents would result in an unreasonable and substantial diversion of its resources, following which the Applicant informed the Tribunal that he did not wish to press for access to that information.
Accordingly, the only remaining issue for the Tribunal's determination was whether the remaining information sought by the Applicant which had been withheld by redaction on the basis of LPP, was validly withheld.
Both parties provided the Tribunal with written submissions. The Applicant cross examined Mr Kelly, Mr Wong and Ms Fairall on their affidavit evidence and provided the Tribunal with oral submissions at hearing. The Respondent cross examined the Applicant on his evidence and made oral submissions at hearing.
[2]
Legal principles
The Tribunal's jurisdiction to conduct this review derives from s 100 of the GIPA Act read with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Section 100(1) of the GIPA Act gives a person who is aggrieved by a "reviewable decision" of an agency the right to seek administrative review of that decision by the Tribunal. The term "reviewable decision" is defined in s 80 of the GIPA Act.
In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3).
The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. The objects of the GIPA Act are set out in s 3(1):
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
"Government information" is given a wide meaning under section 4 of the GIPA Act being "information contained in a record held by an agency."
The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. In accordance with s 9(1) of the GIPA Act, the Applicant has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.
Section 105 of the GIPA Act provides that the onus is on the Respondent agency to justify its decision.
[3]
Privilege
The information withheld by the Respondent is claimed to be subject to LPP. Clause 5 of Schedule 1 to the GIPA Act states:
5 LEGAL PROFESSIONAL PRIVILEGE
(1) 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.
(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.
(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
The term "client legal privilege" is found in the Evidence Act 1995 (NSW) (the Evidence Act) and is used interchangeably with the term "legal professional privilege". The Evidence Act recognises two classes of legal professional privilege - "advice privilege" and "litigation privilege". Section 118 of the Evidence Act provides:
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 Evidence Act provides:
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.
Section 117 of the Evidence Act contains definitions of 'client' and 'lawyer' and relevantly provides as follows:
117 Definitions
(1) In this Division:
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,
(d) …
lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. …
The word 'dominant purpose' is not defined in the Evidence Act. However, it has been held to mean the 'ruling, prevailing, or most influential purpose' that predominates over other purposes and not the 'primary purpose' or 'substantial purpose' of the client or the lawyer: Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098 at [11].
The important question to be asked is "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 at [366]. This is to be determined as a question of fact: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [14].
[4]
Consideration
The onus is on the Respondent to demonstrate that the documents it has withheld from the Applicant are validly withheld pursuant to the GIPA Act.
The Respondent submitted that the information over which it claimed LPP related to requests made in 2020 and 2022 for Legal advice (the 2020 Legal Advice and the 2022 Legal Advice), the advice thereby obtained, and communications about that advice. The requests were made by Dominic Wong. Mark Kelly, Principal Solicitor of Litigation in the Department of Customer Service, received those requests for legal advice as allocated by the Director of Legal Services, and provided that advice via email to Mr Wong. Both Mr Kelly and Mr Wong Gave evidence in their affidavits to that effect and were cross examined on their evidence. I accept their evidence.
Although the Respondent provided the Tribunal with extensive evidence and submissions to support a finding that the information subject to claims for LPP was, in fact, legal advice and communications requesting or providing that legal advice, the Applicant seems to not have disputed that fact. Rather, the Applicant's submissions focussed on the public interest which he claims would be served by the release of the information, and the evidence in support of the Respondent having waived the privilege attaching to those advices and communications.
Clause 5 of Schedule 1 of the GIPA Act requires the Respondent to consider the waiver of LPP where appropriate. The Respondent submitted:
The Respondent maintains that legal professional privilege has not been waived in relation to the 2020 Legal advice and 2022 Legal advice.
Clause 5(2) of Schedule 1 provides that before such access can be refused, "the agency is required to consider whether it would be appropriate for the agency to waive that privilege". An agency's decision about whether or not to waive privilege is not a reviewable decision under the Act (Clause 5(3) of Schedule 1).
NSW Fair Trading had considered the above issue and decided not to waive privilege attached to the 2020 Legal Advice and 2022 Legal Advice. The respondent relies on the Affidavit of Mr Wong dated 24 May 2023, and refers to matters set out at paragraphs 36 and 37 of the Respondent's Open Outline Submissions dated 26 May 2023.
Mr Wong's evidence was that he commissioned the 2020 Legal advice and 2022 Legal advice, and shared the advice obtained with other officers of the Respondent via email, including the Building Policy Unit. The Building Policy Unit was part of the Respondent from 2019. The Applicant's submissions in relation to this evidence was that those emails indicate Mr Wong and Mr Matt Whitton's:
… intention to voluntarily disclose part or all of the substance of the legal advice with respect to Fair Trading's position and therefore breaching the confidentiality principle and waiving privilege.
The Applicant also submitted that the publication on 28 March 2022 on the NSW Fair Trading website of a document entitled "Pool barrier AS clarification: clause 2.3.1 applies to boundary fences" (the Clarification document) waived privilege in the 2020 Legal Advice and the 2022 Legal Advice. The Applicant submitted that the Clarification document was based on legal advice and expressed a legal opinion, and the Respondent's publication of the Clarification document waived any LPP attaching to its source documents.
The Respondent denied privilege had been so waived. It relied on Mr Wong's evidence and referred back to the wording of the Clarification document, which stated:
In relation to clause 2.3.1 of Australian Standard 1926.1-2012 Swimming pool safety - safety barriers for swimming pools:
- retaining walls, objects or level changes that would otherwise reduce the height of a barrier within a property must be located at least 500mm from the barrier.
- Clause 2.3.1 applies in addition to clause 2.2.4, which requires any relevant boundary fence/barrier to be at least 1800mm high on the inside of the property.
We acknowledge the recent (2021) ruling of Standards Australia relating to the interpretation of Clause 2.3.1 of 1926.1-2012. This ruling does not change the law or affect the interpretation of the clause. Therefore, the NSW Fair Trading advice on the application of clause 2.3.1 of 1926.1-2012 as detailed above continues to apply.
The respondent submitted that the Clarification document did not waive privilege of the 2020 Legal Advice and 2022 Legal Advice it had obtained. I agree. There is just no factual basis upon which the Tribunal could find that the publication of what is, in effect, a fact sheet or position paper by the respondent discloses the fact that it sought legal advice on a particular issue, received legal advice, or the content of the legal advice it received.
The Respondent's submissions demonstrate that it considered the issue of whether to waive privilege over the 2020 Legal Advice and 2022 Legal advice and determined not to waive privilege, and that it considered that it had not "voluntarily" waived privilege, as submitted by the Applicant.
Pursuant to cl 5(3) of Schedule 1 of the GIPA Act, the Tribunal cannot review the Respondent's decision to waive or not waive a claim for LPP. All the Tribunal can do is review the information and determine whether it falls within the definition of LPP. If it does, the information must be withheld pursuant to cl 5(1) of Schedule 1 of the GIPA Act. There is no balancing exercise to be engaged as a result of the overriding presumption against its disclosure. The public interest contended for by the Applicant is therefore irrelevant.
I accept the Respondent's submission that the evidence of Mr Kelly and Mr Wong establishes a relationship of solicitor and client. Mr Kelly's evidence sets out the internal distinctions within the Respondent agency which demonstrate that the legal practice is distinct from its other divisions. Mr Kelly's evidence was that requests for legal advice were usually sent through to the legal practice via division directors. The client requesting legal advices from Mr Kelly which became the 2020 Legal Advice and 2022 Legal Advice was Dominic Wong. Mr Kelly explained that the Legal Services team works for the Better Regulation division, and that Dominic Wong was a manager in the Better Regulation division who could ask for legal advice, usually through his director. Under cross examination Mr Kelly denied that "all information which comes into your team is confidential" and explained that confidentiality arose from client privilege, including requests for legal advice in the context of employment, duties and occupation. He explained that not all communications with clients were confidential, giving as example "we can talk about politics, family, and its not confidential".
Dominic Wong was the Manager of Programs and Business Governance, Building and Construction Compliance, Better Regulation division of Customer Service. He commissioned the 2020 Legal Advice and 2022 Legal Advice. He explained that a summary of key issues such as those contained in the Clarification document was often released to the public but was not the actual legal advice sought or obtained by the Respondent. He described the Clarification document as "a note on the Fair Trading website regarding the Department's interpretation of the clause" and said that "where there are questions of interpretation, these could be settled by a Court decision".
I am satisfied based on the evidence of Mr Kelly and Mr Wong that a relationship of confidentiality existed in relation to the request for and provision of the 2020 Legal Advice and 2022 Legal Advice. I am also satisfied on the basis of Mr Wong's evidence that the confidentiality of those advices was preserved, and there is no evidence that the advices were provided to anyone outside of the client organisation to suggest that privilege was waived.
Having reviewed the information over which LPP is claimed by the Respondent in a Confidential Session, I am also satisfied that the nature and content of that information supports this Tribunal finding that LPP was appropriately claimed. The information entirely consists of requests for, and the provision of, legal advice, and communications expressing the content of that legal advice and the opinions therein expressed. Although not all of the communications have "confidential" warnings or headings, Mr Kelly's evidence explained that although his practice was to type "confidential" for a "full formal advice", he didn't think to apply it on all occasions. This does not diminish the fact that the information was or contained communications between a solicitor and client for the dominant purpose of providing legal advice to the client, and the contents of that legal advice.
On my review of each of the redactions withheld by the Respondent on the basis that the information was the subject of legal professional privilege, I have agreed with the Respondent that a claim for LPP is supported. Pursuant to cl 5(1) of Schedule 1 to the GIPA Act, there is an overriding presumption against the disclosure of this information. I have also found that the Respondent has complied with its obligations to consider whether it could waive the privilege attaching to each piece of information withheld, pursuant to cl 5(2) of Schedule 1 of the GIPA Act.
The Respondent has discharged its obligations under the GIPA Act in relation to the Applicant's access application. The correct and preferable decision is therefore to affirm the Respondent's decision of 5 August 2022 in accordance with these reasons for decision, and otherwise dismiss the Applicant's application for review.
[5]
Orders
1. The Respondent's decision of 5 August 2022 is affirmed.
2. The Applicant's application for review is otherwise dismissed.
[6]
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: 15 May 2024