There are two notices of motion before the Commission.
In the first, filed on 14 September 2023, Mr Mallegowda seeks orders that he be granted access to documents produced by the Transport Secretary under summons over which a claim of privilege has been asserted. For ease of reference, I will refer to the documents the subject of that motion as "the relevant documents".
Through a second notice of motion filed on 28 September 2023, Mr Mallegowda seeks leave to issue a summons to attend and give evidence to Paul McKaysmith.
Both motions are opposed by the Transport Secretary.
The catalyst for the second motion appears to have been the evidence led by the Transport Secretary in respect of the first motion. Consequently, it seemed to me that the most expedient course was to hear and determine the motions together, with the evidence in one taken to be evidence in the other. The parties raised no objection to me taking that approach.
Prior to coming onto the Bench today, I had the opportunity to consider in detail the evidence and submissions relied on by the parties in respect of both of the motions. I have also considered carefully the cross-examination of Ms Maynard and the oral submissions advanced by the parties. I do not propose to rehearse at length the arguments that were advanced by each of them.
Turning to the notice of motion filed on 14 September 2023:
On 23 March 2023 Mr Mallegowda issued a summons to produce to the Transport Secretary. The Transport Secretary produced several documents over which he claimed legal professional privilege. Through his notice of motion, Mr Mallegowda in effect seeks orders that he be granted access to those documents. The notice of motion is supported by an affidavit of Mr Mallegowda sworn on 13 September 2023. He also filed two sets of detailed written submissions.
In opposing the motion, the Transport Secretary read an affidavit of Bronwyn Maynard, the Acting Executive Director Legal - Employment & Safety in the Legal, Privacy and Internal Audit branch of Transport for New South Wales, sworn on 27 September 2023. The Transport Secretary also relied on detailed written submissions.
Somewhat unusually in the context of an interlocutory application, I acceded to Mr Mallegowda's request that Ms Maynard be directed to attend for the purposes of being cross-examined on her affidavit.
In broad thrust, Mr Mallegowda relies on two grounds: first, that the relevant documents do not attract privilege and, secondly, even if they do, that privilege has been waived.
As the Transport Secretary submitted, he bears the onus of establishing the existence of the privilege: see, for example, Grant v Downs (1976) 135 CLR 674 at 679. If he does so, the onus falls on Mr Mallegowda to prove that the Transport Secretary has acted in a manner which waived privilege over the relevant documents: New South Wales v Betfair Pty Ltd (2009) 180 FCR 543; [2009] FCA 160 at [54].
The Transport Secretary's primary objection to producing the relevant documents is based on s 118 of the Evidence Act 1995. He also relies on s 119 of the Evidence Act. As those provisions are traversed at length in the parties' submissions, it is not necessary that I read them out.
The basis of the Transport Secretary's claim for privilege is that the relevant documents contain legal advice provided to him by Ms Maynard or were created for the purposes of allowing her to provide that advice.
It is not in dispute that Ms Maynard is a lawyer. In her evidence she described herself as being a solicitor in the employ of the Transport Secretary with responsibility for providing legal advice and legal services to the Transport Secretary, Transport for New South Wales and other agencies defined in s 3 of the Transport Administration Act 1988. She stated that it is a requirement of her employment that she maintain a current practising certificate.
At pars 21-29 of her affidavit, Ms Maynard described in overview the relevant documents. She deposed that the documents contained legal advice provided by her to Darren Keenan, a Senior Manager in the Professional Standards & Conduct Unit of Transport for New South Wales ("PSCU"), and to Paul McKaysmith, the Director of the PSCU.
Nothing arose from Mr Mallegowda's cross-examination of Ms Maynard which cast doubt on this evidence. In particular, Mr Mallegowda sought to impugn Ms Maynard's credibility. Nothing that arose in cross-examination would justify any adverse inference being drawn against Ms Maynard. I accept her as a witness of truth.
Mr Mallegowda placed significant reliance on Ms Maynard's evidence to the effect that the relevant documents were created "for the purposes of obtaining and providing legal advice and related to an anticipated Australian legal proceeding".
He contends that:
1. there are relevantly two clients for the purposes of the Evidence Act, Mr Keenan and Mr McKaysmith, the argument being that the individual recipient of the advice is properly to be regarded as the "client";
2. at the time Ms Maynard provided the advice, there were no existing or anticipated proceedings against either individual. I observe, parenthetically, that it was common ground that no proceedings have since been commenced by Mr Mallegowda in which either Mr Keenan or Mr McKaysmith is a party;
3. to the extent that the "client" was the Transport Secretary, at the time the advice was provided there were no existing or anticipated legal proceedings against the Transport Secretary;
4. it follows that the advice provided by Ms Maynard cannot be regarded as a confidential communication created "for the dominant purpose of a 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", as required by s 119 of the Evidence Act; and
5. consequently, s 119 did not operate to protect the relevant documents from disclosure.
It is clear from Ms Maynard's affidavit and her evidence under cross-examination that her client is properly to be regarded as the Transport Secretary. I note in this regard s 68C(3) of the Transport Administration Act provides that the Transport Secretary may, subject to that and any other Act or law, exercise on behalf of the government of New South Wales the employer functions of the government in relation to the persons employed in the transport service. The Transport Secretary is the respondent to these proceedings.
Section 117(1)(b) of the Evidence Act defines "client" to include "an employee or agent of a client". It is not in question that Mr Keenan and Mr McKaysmith are employed in the Transport Service. It follows that any advice provided by Ms Maynard to Mr Keenan or Mr McKaysmith is to be regarded as having been provided to the Transport Secretary. They are not to be regarded as clients for the purposes of ss 118 and 119 of the Evidence Act.
In her affidavit, Ms Maynard sets out how the relevant documents came to be created and why the Transport Secretary asserts privilege over them. In so far as she deposed that the documents either contained legal advice or were created for the purposes of enabling her to provide that advice, I do not consider that this evidence was in any way shaken, despite Mr Mallegowda's extensive cross-examination of her.
Mr Mallegowda requested that the Commission exercise its discretion under s 133 of the Evidence Act to inspect the relevant documents. In circumstances where Ms Maynard's evidence has not relevantly been disturbed, and in fact I accept it, there is no apparent reason for the Commission to do so.
I am reinforced in this view by the very serious but wholly unsubstantiated contention by Mr Mallegowda that the Transport Secretary has improperly invoked privilege to inappropriately conceal documents which would, to use the vernacular, be the "smoking gun". That is, he submitted that the documents would prove his case and the claim for privilege is a device that has been improperly deployed by the Transport Secretary to prevent that evidence coming out. As I have said, these are unsubstantiated assertions and I give them no credence. Moreover, they do nothing to convince me to exercise my discretion under s 133 of the Evidence Act, as requested by Mr Mallegowda.
For these reasons, I am satisfied that requiring the production of the relevant documents would result in the disclosure of a confidential communication made between a client (in this case, the Transport Secretary) and a lawyer (Ms Maynard), for the dominant purpose of the lawyer providing legal advice to the client, within the meaning of s 118 of the Evidence Act.
Mr Mallegowda contended that for the claim of privilege to be maintained it is necessary that the requirements of both ss 118 and 119 of the Evidence Act be met. That is not correct. Each section operates on its own terms.
Having found that s 118 applies in respect of the relevant documents, it is not necessary to traverse the question as to whether the relevant documents might also be protected from disclosure by s 119 of the Evidence Act.
The question which next arises is whether privilege in the relevant documents has been waived.
The evidence led by the Transport Secretary in the substantive proceedings includes a statement of Mr Keenan dated 6 July 2023. Mr Mallegowda identified a number of passages in that statement in which Mr Keenan refers to the relevant documents. Mr Mallegowda contends that through these passages Mr Keenan has waived privilege in those communications.
Mr Mallegowda relies on s 122 of the Evidence Act. His written submissions also traverse a large number of authorities dealing with the question of waiver of privilege.
I have considered carefully the evidence of Mr Keenan on which Mr Mallegowda relies. On my reading, the evidence goes no higher than Mr Keenan having requested and received legal advice from Ms Maynard.
By way of example, in his cross-examination of Ms Maynard, Mr Mallegowda drew particular attention to pars 23 and 35 of Mr Keenan's statement. In the first, Mr Keenan's evidence goes no higher than saying that he sought advice from Ms Maynard "regarding the assessment of Mr Mallegowda's criminal record check". This rises no higher than a request for advice. In the second, Mr Keenan states that through his email exchange with Ms Maynard he "became aware of the contents of a deed of release signed by Mr Mallegowda in 2017". The evidence does not rise to the point of saying he received advice on that document.
In that regard, Mr Mallegowda submitted that I should infer that Ms Maynard would not have provided the deed to Mr Keenan without having provided advice on the deed. Suffice it to say there is no evidence to support such an inference.
In short, there has been no disclosure of "the substance of the evidence" within the meaning of s 122(3) of the Evidence Act. To use the language of the authorities on which Mr Mallegowda relies, there has been no "voluntary disclosure of the gist or conclusion of the legal advice" such as to amount to waiver: Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 at [65], cited with apparent approval in Ashfield Municipal Council v RTA [2004] NSWSC 917 at [18].
I do not consider that Mr Mallegowda has demonstrated that the Transport Secretary has acted in a way that is inconsistent with him objecting to the production of the relevant documents within the meaning of s 122(2) of the Evidence Act.
For these reasons, I am not persuaded that there has been a waiver of privilege in any of the relevant documents.
The notice of motion filed by Mr Mallegowda on 14 September 2023 is dismissed.
I turn now to the notice of motion filed by Mr Mallegowda on 28 September 2023.
Mr Mallegowda has previously sought leave to issue a summons to Mr McKaysmith, an application which I dismissed: Mallegowda v Transport Secretary [2023] NSWIRComm 1078. In that decision, I noted that I had not been persuaded that there was a legitimate forensic purpose in a summons to attend and give evidence being issued to Mr McKaysmith. I observed (at [16]) that there was no evidence that Mr McKaysmith was directly involved in making the decision not to proceed with Mr Mallegowda's application for employment or even that he had prior knowledge that it was to be made. I also found (at [17]) that Mr Mallegowda had not demonstrated that, to the extent that Mr McKaysmith had knowledge of Mr Mallegowda's prior employment with Roads and Maritime Services, it was relevant to the question as to whether the impugned decision was taken for one of the prescribed reasons in s 210(1) of the Industrial Relations Act 1996.
Ms Maynard deposed that at 9.36am on 24 February 2023 Mr Mallegowda sent an email to Jarrad Perks, then employed with TfNSW, copying in Mr McKaysmith and another TfNSW employee. At 1.17pm that day, Ms Maynard sent an email to Mr Keenan copying in Mr McKaysmith. She stated under cross-examination that, as he had been copied into Mr Mallegowda's email, she considered it appropriate that Mr McKaysmith be copied into her correspondence with Mr Keenan. Ms Maynard sent a further email to Mr Keenan and Mr McKaysmith at 3.13pm on 24 February 2023. She deposed under cross-examination that this email contained the legal advice that Mr Keenan had requested that she provide. She described those which preceded it, including the one sent at 1.17pm, as being confidential communications created for the purpose of providing that legal advice.
Mr Mallegowda also drew attention to a chat exchange between Mr Keenan and Mr McKaysmith on 24 February 2023 in which Mr Keenan wrote:
"FYI - Mallegowda is under control - Bronwyn and I are supporting Talent."
Mr Mallegowda's oral and written submissions may be distilled to these propositions:
1. Mr McKaysmith has extensive knowledge of Mr Mallegowda's prior employment with (then) Roads and Maritime Services and the circumstances in which that came to an end;
2. it was inconceivable that, having received the emails from Ms Maynard and the message from Mr Keenan, Mr McKaysmith would not have imparted his knowledge to them, particularly given his position as director of the PSCU; and
3. he can therefore be presumed to have had an active involvement in the process culminating in Mr Mallegowda's application for employment being discontinued.
In his written submissions, Mr Mallegowda contended that it is "obvious the Director who was responsible for the PSCU will make the decision about the outcome of the Applicant, not his subordinate, Mr Keenan".
The evidence before the Commission is that Mr Keenan requested legal advice from Ms Maynard; Ms Maynard and Mr Keenan exchanged several emails to enable Ms Maynard to obtain the instructions necessary to provide that advice; Ms Maynard copied Mr McKaysmith into one of those emails, sent at 1.17pm on 24 February 2023; the legal advice was provided in an email sent by Ms Maynard to Mr Kennan and Mr McKaysmith at 3.13pm on 24 February 2023; and, at no time had Mr McKaysmith sought legal advice from Ms Maynard regarding Mr Mallegowda.
There is no evidence that Mr McKaysmith responded to those emails or entered into any correspondence with Mr Keenan or others regarding the legal advice that had been obtained. As was the case in respect of my earlier decision, Mr Mallegowda seeks to have the Commission draw inferences or make assumptions as to Mr McKaysmith's involvement simply by virtue of his position. Ms Maynard's explanation as to why she decided to copy Mr McKaysmith into the legal advice she was providing to Mr Keenan is entirely reasonable and plausible, given that he is the Director of the PSCU.
Overall, there is an insufficient basis to extrapolate from the fact that Mr McKaysmith received the legal advice provided by Ms Maynard a finding that Mr McKaysmith was relevantly the decision-maker for the purposes of these proceedings or otherwise an "active participant" in the process by which the relevant decisions were made. The same must be said of the chat message received by Mr McKaysmith from Mr Keenan.
I am not persuaded that there is a legitimate forensic purpose in a summons to attend and give evidence being issued to Mr McKaysmith.
The notice of motion filed by Mr Mallegowda on 28 September 2023 is also dismissed.
Damian Sloan
Commissioner
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Decision last updated: 12 October 2023