74 NSWLR 333
Box Valley Pty Ltd v Price [2000] NSWIRComm 117
97 IR 484
Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117
213 CLR 543
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd
[2012] NSWCA 48
Source
Original judgment source is linked above.
Catchwords
74 NSWLR 333
Box Valley Pty Ltd v Price [2000] NSWIRComm 11797 IR 484
Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117213 CLR 543
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd[2012] NSWCA 48(2012) 188 LGERA 26
Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12367 ALR 256
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67250 IR 412
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 1597 ALJR 419
Sargent v ASL Developments Ltd [1974] HCA 40131 CLR 634
Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178320 IR 249
Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083
Judgment (10 paragraphs)
[1]
The Applicant's Submissions as to why Leave should be granted
Mr Mallegowda provided the Full Bench with two sets of written submissions in support of his application for leave to appeal, one which had been filed on 23 January 2024 and the other which, with leave, he filed during the hearing of the leave application on 5 March 2024. Mr Mallegowda also made oral submissions. The Full Bench has also had regard to the written submissions Mr Mallegowda filed in support of the appeal dated 23 January 2024 and his reply submissions dated 20 February 2024.
The written submissions, particularly those filed during the hearing of the application for leave to appeal, simply recounted, by reference to authorities, the principles a Full Bench will apply when determining whether to grant leave to appeal pursuant to s 188, without explaining why those principles apply in the present matter. Nevertheless, the Full Bench understands Mr Mallegowda to contend that leave should be granted because:
1. the Commissioner made significant errors of law, not just errors of fact, including that he was denied procedural fairness and natural justice;
2. the appeal raises important questions as to the interpretation and application of ss 117, 118, 122 and 133 of the Evidence Act; and
3. it was not available on the evidence for the Commissioner to find certain emails which have been produced in redacted form, were privileged.
Mr Mallegowda's Application articulated seven grounds of appeal, namely:
"1. That the Commission improperly applied the "Dominant Purpose" common law test in determining that the documents in question were protected by privilege.
2. That the Commissioner erred in concluding that, under the Dominant Purpose test, both sections 118 (legal privilege) and 119 (litigatory privilege) need not be satisfied, and that satisfying only one is sufficient.
3. That the Commissioner erred in finding that any legal advice given to Mr. Keenan or Mr. McKaysmith ought to be considered as having been given to the Respondent Transport Secretary himself (and thus that privilege also applies to those persons).
4. That the Commissioner erred in finding that, in the circumstances, the Respondents had not waived their right to legal privilege through their conduct and admissions throughout the proceedings thus far.
5. That the Commissioner otherwise erred in failing to exercise their authority under section 133 of the Evidence Act to inspect the documents to readily resolve the question in a fair and expeditious manner.
6. That the Commissioner erred in finding that Mr. McKaysmith had no relevance or value as a witness, despite his demonstrated prior history of involvement with the Appellant and the subject matter under consideration.
7. That the Commissioner erred in finding that the time of decision to reject the Appellant was made before 9:00 am on 24 Feb 2023 without evidence, when the actual decision was made later at 3:16 pm on the same day with proper written notification was provided at 4:00 pm on the same day."
At the hearing Mr Mallegowda withdrew ground 2 and ground 6. In his written submissions filed 23 January 2024 Mr Mallegowda raised an eighth ground of appeal, namely that the Commission had failed to afford him procedural fairness and natural justice. In circumstances where Mr Mallegowda was unrepresented and where the Transport Secretary had notice of this ground of appeal before filing his submissions, and well before the hearing of the application for leave, the Full Bench granted Mr Mallegowda leave to amend his Application to include ground 8.
Mr Mallegowda asserted in his Application that grounds 1, 3, 4 and 5 were "questions of law".
[2]
A Preliminary Point
Mr Mallegowda and Commissioner Sloan proceeded from the basis that the Evidence Act applied to the production of the subject documents. We agree, however it is useful to explain why this is the case, in circumstances where the Commission is not a "NSW Court" within the meaning of s 4 of the Evidence Act: see definition of "NSW Court" in the Evidence Act Dictionary and s 163 of the IR Act and the remarks of Boland J, President in McVicar v Boral Transport Limited [2013] NSWIRComm 46 at [20].
Rule 1.9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which applies in the Commission (see r 1.5 and Sch 1 to UCPR) provides:
(1) This rule applies in the following circumstances -
(a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer,
(b) if a party requires another party, by notice under rule 34.1, to produce a document to the court or to an authorised officer,
(c) if a question is put to a person in the course of an examination before the court or an authorised officer.
(2) In subrule (1), authorised officer means -
(a) any officer of the court, or
(b) any examiner, referee, arbitrator or other person who is authorised by law to receive evidence.
(3) A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information.
(4) A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled.
(4A) If a document is produced, and a person objects to the production of the document on the ground that the document is a privileged document, access to the document must not be granted unless and until the objection is overruled.
(4B) The production of a document to the court under a claim for privilege does not constitute a waiver of privilege.
(4C) Subrules (4A) and (4B) extend to documents produced before the commencement of those subrules.
(5) For the purpose of ruling on the objection -
(a) evidence in relation to the claim of privilege may be received from any person, by affidavit or otherwise, and
(b) cross-examination may be permitted on any affidavit used, and
(c) in the case of an objection to the production of a document, the person objecting may be compelled to produce the document.
(6) This rule does not affect any law that authorises or requires a person to withhold a document, or to refuse to answer a question, on the ground that producing the document, or answering the question, would be injurious to the public interest.
"Privileged document" is defined in the UCPR Dictionary to mean "a document that contains privileged information". "Privileged information" is relevantly defined in the UCPR Dictionary to include "information of which evidence could not, by virtue of the operation of Division 1 of Part 3.10 of the Evidence Act 1995, be adduced in the proceedings over the objection of any person".
Accordingly, any objection to production based on legal professional privilege must be determined in light of the provisions found in Division 1 of Part 3.10 of the Evidence Act: Pace v State of New South Wales [2015] NSWIC 7 (Kite AJ) [47] - [48]; Carbotech - Australia Pty Ltd v Yates [2008] NSWSC 1151; (Brereton J) [8] - [10]; Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083; 81 NSWLR 526 (White J) [24] - [29].
For completeness we note that although s 163(1)(b) of the IR Act provides that the Commission is not bound by the rules of evidence and may inform itself on any matter in any way that it consider just, legal professional privilege is a rule of substantive law and not merely a rule of evidence: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 per Gleeson CJ, Gummow, Gaudron and Hayne JJ at 552 [9]-[10]. Indeed, it is not merely a rule of substantive law, "it is an important common law right or, perhaps more accurately, an important common law immunity": at 553[11]. Accordingly, if the Evidence Act did not apply, the respondent would nevertheless be entitled to object to production pursuant to the common law.
[3]
Ground 1
Ground 1 appears on its face to assert that the Commissioner applied the wrong test, that is, the 'dominant purpose' test, in determining that the documents in question were protected by privilege. This could potentially constitute a legal error, but plainly not in this case as the 'dominant purpose' test is the correct test, both pursuant to ss118 and 119, but also at common law: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; 201 CLR 49.
Mr Mallegowda made clear in his written and oral submissions however, that what he actually asserted was that the Commissioner erred in finding that the dominant purpose test was satisfied on the evidence before him. Such an error is an error of fact. It was plainly open on the evidence for the Commissioner to reach this view.
Mr Mallegowda's principal attack on the Commissioner's finding that the dominant purpose test was satisfied concerned the fact that Ms Maynard only gave evidence as to the purpose of "five documents" when privilege has been claimed, according to Mr Mallegowda, over eight emails. There is little force in this argument when one considers Ms Maynard's affidavit which explains that four of the five 'documents' consisted of an 'email chain'. It appears on the face of Ms Maynard's affidavit that the email chains contain at least 11 individual emails.
Mr Mallegowda also pointed to evidence Ms Maynard gave in cross examination to the effect that she did not give legal advice on a Deed of Release, a copy of which she had sent to Mr Keenan by an email sent at 1:17pm on 24 February 2023. He contended that in light of this evidence that that email was not privileged, and it was a "clear indication that there could be other communications of (sic) general nature, which are not regarded as confidential communications between lawyer and client under s 118 of the Evidence Act". However, for a communication to be privileged pursuant to s 118 it does not need to contain legal advice - it must simply have occurred for the dominant purpose of providing legal advice to the client. Thus, for instance, a document may be sent to a client by email and questions asked of the client with respect to the document which will inform the lawyer in respect of certain matters pertaining to advice subsequently given by the lawyer. The email, its attachment and any reply email would all be privileged pursuant to s 118. Ms Maynard gave evidence that the email and its attachment were provided for the purpose of providing legal advice to the Transport Secretary and her evidence was accepted by the Commissioner.
There does not appear to be any error in the Commissioner's factual finding, based on the evidence before him and certainly no error of the kind that would justify the Full Bench's intervention. As the Transport Secretary submitted, an appeal is not an opportunity to re-litigate the contest below.
Under the rubric of ground 1, Mr Mallegowda also contended that ss 118 and 119 of the Evidence Act did not apply in circumstances where:
1. he was not adducing evidence, this being a pre-condition to the application of the provisions; and
2. where the objection to disclosure on the basis of privilege had been made by the Transport Secretary's lawyer, Ms Maynard, not by the "client".
As has been explained at [30] - [32] above, Rule 1.9 of the Uniform Civil Procedure Rules operates to "bring the law of privilege in relation to pre-trial production into line with the law (stated in the Evidence Act) as it applies at trial.": TransGrid v Members of Lloyds Syndicate 3210 [2011] NSWSC 301 at [10] (Ball J). Further, as was raised with Mr Mallegowda during the hearing, s 131A of the Evidence Act extends the operation of Division 1 of Part 3.10 to pre-trial states of civil proceedings. In short, the adducing of evidence is not a pre-condition to the application of ss 118 and 119 of the Evidence Act to the production of material pursuant to notices to produce.
The second submission is not factually accurate. One hallmark of a lawyer-client relationship, whether the lawyer be an in-house employed lawyer or an external lawyer, is agency. As Mason J (as the Chief Justice then was) said in Sargent v ASL Developments Ltd [1974] HCA 40; 131 CLR 634 at 659: "The solicitor is to be regarded as the alter ego of the client …". Lawyers representing the Transport Secretary, both in-house and externally, act as agents for their principal and client. As Ms Maynard attested in her affidavit "legal professional privilege has been claimed by the Transport Secretary." The lawyers objecting to access being given to the documents over which privilege has been claimed, did so as agents for the Transport Secretary.
The Commissioner's approach to the task of determining whether the Transport Secretary had established his claim that the subject documents were privileged was entirely orthodox and open on the evidence.
[4]
Ground 3
Mr Mallegowda contended that as the legal advice provided by Ms Maynard was provided only to Mr McKaysmith and Mr Keenan and not to the Transport Secretary personally, the Transport Secretary was not entitled to maintain a claim that the subject documents were privileged. In other words, Mr Mallegowda submitted that Messrs McKaysmith and Keenan were the "clients" for the purposes of privilege, not the Transport Secretary.
It is not a matter of dispute that the legal advice was provided to Mr McKaysmith and Mr Keenan, that both were employed by the Transport Secretary and the advice was not sought by or given to, the Transport Secretary personally.
Ms Maynard gave evidence that she was a solicitor employed by the Transport Secretary and that she was responsible for providing legal advice and legal services to the Transport Secretary, Transport for NSW (TfNSW) and some of the other 'public transport agencies' as defined in s 3 of the Transport Administration Act 1988 (NSW).
As explained above, by reason of UCPR r 1.9 the provisions of Division 1 of Part 3.10 of the Evidence Act applies to the pre-trial production of documents. Division 1, Part 3.10 includes s 117 which includes definitions applicable to sections in the Division. "Client" is defined in s 117 as follows:
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) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client - a manager, committee or person so acting,
(e) if a client has died - a personal representative of the client,
(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.
Consistent with Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12; 367 ALR 256, the Commissioner was correct to conclude, at [20] of the Decision, that Ms Maynard's "client" is properly to be regarded as the Transport Secretary, being a person who employs a lawyer: s 117(1)(a).
It is an unremarkable proposition that employees may act as agents for their employer. Mr Keenan's evidence, upon which Mr Mallegowda relied, was that he was employed with TfNSW as a Senior Manager, Professional Standards and Conduct Unit (PSCU), People and Culture and that he reported to Paul McKaysmith, Director of PSCU. It may be readily inferred that both Mr Keenan and Mr McKaysmith had actual authority, implied or express, to request and to receive legal advice from the in-house lawyer employed by the Transport Secretary, on behalf of the Transport Secretary, regarding matters concerning the PSCU. Mr Keenan gave evidence that:
The "TfNSW 'Criminal Charges, Convictions and Record Checks Procedure' prescribes that PSCU is required to review and undertake a risk assessment in circumstances where a person applying for employment with TfNSW has their criminal record check returned with conviction/s recorded".
Mr Keenan also gave the following evidence:
"Between 17 and 22 February 2023, I sought legal advice from Bronwyn Maynard, an internal solicitor employed by TfNSW in the role of Direction Legal - Employment and Safety, Legal, Privacy and Internal Audit in the Corporate Services team, regarding the assessment of Mr Mallegowda's criminal record check."
To the extent that there is any doubt as to Messrs Keenan and McKaysmith's authority to request and receive legal advice from Ms Maynard, on behalf of the Transport Secretary, reliance may also be placed on the 'presumption of regularity', which provides that "[w]here a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled" (Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, McHugh JA at 164; see also Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 at [115]). There is no evidence that Messrs Keenan and McKaysmith did not have the power and authority to request and receive legal advice on behalf of the Transport Secretary.
Plainly, in the circumstances, both Mr Keenan and Mr McKaysmith acted as agents of their employer, the Transport Secretary, in requesting and obtaining legal advice from Ms Maynard.
In any event, the fact that the legal advice was requested and received by employees of the Transport Secretary rather than the Transport Secretary himself, is of no consequence given the extended definition of "client" in s 117(1)(b) of the Evidence Act.
As the Commissioner observed at [21] of the Decision, s 117(1)(b) defines "client" to include "an employee or agent of a client." Consequently, both Mr Keenan and Mr McKaysmith come within the extended definition of client and to the extent communications were engaged in between them and Ms Maynard and Ms Maynard provided legal advice to them, it was privileged - in their hands and in the hands of their employer, the Transport Secretary. While we consider the Commissioner was wrong to state, at [21], that Mr Keenan and Mr McKaysmith were not to be regarded as clients for the purposes of ss 118 and 119 of the Evidence Act, this does not affect his correct finding 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.
The situation is not dissimilar to that encountered in Bailey v Director-General, Department of Land and Water Conservation [2009] NSWCA 100; 74 NSWLR 333 (Allsop P, Hodgson and Tobias JJA). [1] In that matter the appellants alleged that the Director-General, Department of Natural Resources New South Wales (and others), in commencing and maintaining a prosecution against the first appellant, Mr Bailey, in the Land and Environment Court and in commencing and maintaining an appeal to the Court of Criminal Appeal against the dismissal of those proceedings, had maliciously prosecuted Mr Bailey without reasonable or probable cause. The appellants filed a notice of motion seeking an order that the respondents produce for inspection certain documents over which client legal privilege under ss 118 and 119 of the Evidence Act was claimed. Justice James at first instance ordered that some documents be produced, but otherwise upheld the respondents' claim for privilege.
As Tobias JA explained:
48 It was submitted before the primary judge that in the present case the only relevant "client" was the Director-General, who had been the prosecutor in the proceedings in the Land and Environment Court and the appellant in the proceedings in the Court of Criminal Appeal. However, it was common ground that none of the Departmental legal officers who had made or prepared the documents in respect of which privilege was claimed was "an employee" of the Director-General. Rather, the employer of the Department's legal officers and other officers who were party to the relevant communications or documents was the Crown who, it was accepted, was not the "client" for relevant purposes.
49 It was therefore submitted that the relevant legal and other officers of the Department were "agents" of the Director-General. However the appellants submitted that the onus was on the respondents to prove any such agency and that no evidence had been adduced to discharge that onus.
50 The primary judge dealt with that submission in the following terms:
"51 It is unnecessary for me to determine whether the Crown or the Director-General should be regarded as having been the party to the proceedings in the Land and Environment Court or in the Court of Criminal Appeal. If the Crown was the party, then it would also have been the 'client' and each Departmental legal officer would also have come within the extended definition of 'client' in s 117(1)(b) as being an employee of the client. If the Director-General was the party, then he would also have been the client and the Departmental legal officers would also have come within the extended definition of 'client' in s 117(1)(b) as being an 'agent' of the client.
52 I accept that the onus would be on the [respondents] to establish that the Departmental legal officers were agents of the Director-General. However, such an agency could readily be inferred from the circumstances that the Departmental legal officers were qualified lawyers working as lawyers in a government department administered by the Director-General, making communications on behalf of the Director-General with potential witnesses or sources of information, solicitors in the Crown Solicitor's Office or counsel, for the purpose of court proceedings being brought by the Director-General as a party.
53 I consider that the communications by or to a Departmental legal officer came within s 119 as being communications between a 'client' (the term including the Departmental legal officer) and another person or between a lawyer acting for a client (the Crown or the Director-General) and another person."
51 The appellants submitted that his Honour had erred in inferring from the circumstances that the Department's legal officers were agents of the Director-General. …
52 From the organisational structure of the Department annexed to the affidavit of Mr Phelps, it is apparent that all divisions within the Department such as, for instance, Legal and Compliance, are responsible through the Deputy Director-General to the Director-General as head of the Department. In the present case, the Director-General was the prosecutor and it was ultimately his decision whether or not to prosecute. In so doing he no doubt relied upon recommendations made to him by the appropriate officers within his Department. As Director-General, he was ultimately responsible for the functions and operations of the Department including the taking of such steps as were necessary in order to bring to fruition the recommendation as to whether Mr Bailey should be prosecuted for breach of the NVC Act, being legislation the administration of which he, as head of the Department, was responsible: see, eg, ss 15(3), 29, 31, 37, 40, 42(2)(d), 46, 47, 50, 56, 60 and 66. With due respect to the appellants' submissions, it defies common sense to suggest that the legal or other officers within the Department were providing or receiving legal advice otherwise than as the agents of the Director-General for the purpose of providing him with such information as was appropriate to enable him to ultimately determine whether or not to proceed to prosecute.
53 Accordingly, in my view no error has been demonstrated with respect to the finding of agency of the primary judge at [52] of his judgment.
Drawing analogy from the above, we conclude:
1. the Transport Secretary was the client of Ms Maynard for the purposes of ss 118 and 119; and
2. Messrs Keenan and McKaysmith, as employees of the Transport Secretary, were also clients of Ms Maynard for the purposes of ss 118 and 119 in circumstances where their employer was a client of Ms Maynard; and
3. it may be readily inferred that Messrs Keenan and McKaysmith were also agents for the Transport Secretary for the purposes of requesting and receiving legal advice regarding applicants for employment with the Transport Secretary, given their roles within the PSCU and the role of the PSCU itself and it "defies common sense" to suggest that they were receiving legal advice otherwise than as the agents of the Transport Secretary.
In the premises, Commissioner Sloan was correct in concluding, at [25] of the Decision, 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." This being the case, he was also correct in considering, at [27], that it was 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.
In the circumstances there is no arguable error of law or fact that would justify the granting of leave to appeal in respect of ground 3.
[5]
Ground 4
Mr Mallegowda contended that the Commissioner had erred in finding that the Transport Secretary had not waived their right to legal privilege through their conduct and admissions throughout the proceedings thus far.
This ground alleges an error of fact, not of law. It was not only open on the evidence for the Commissioner to conclude, as he did at [34] and [35] of the Decision, that there had been no disclosure of "the substance of the evidence" within the meaning of s 122(3) of the Evidence Act, such that there had been no waiver of privilege due to the client acting in way that is inconsistent with maintaining a claim of privilege, that is clearly the correct conclusion based on the material before the Commissioner, including the statement of Mr Keenan and the affidavit of Ms Maynard.
[6]
Ground 5
Mr Mallegowda contended that the Commissioner erred in failing to exercise his authority under s 133 of the Evidence Act to inspect documents to readily resolve the question (as to whether the documents were privileged) in a fair and expeditious manner.
While it may be the case that UCPR r 1.8 is the appropriate source of the Commission's power to inspect documents to determine a question arising in respect of privilege of documents sought by way of a notice to produce, rather than s 133 of the Evidence Act, no party raised as an issue the applicability of s 133. Given the similarity of the power afforded by r 1.8 and s 133, the actual source of the Commission's power to inspect the subject documents is of no consequence in the present proceeding.
The power under s 133 of the Evidence Act (and pursuant to UCPR r 1.8) is discretionary. We are satisfied that the Commissioner properly exercised his discretion. It was open for the Commissioner to accept Ms Maynard's evidence and conclude that the communications were made for the dominant purpose of Ms Maynard providing legal advice to the Transport Secretary. In those circumstances, there was no "question arising" in respect of the privileged nature of the subject documents and so no need for the Commissioner to inspect the documents to confirm that they were so privileged. As the Transport Secretary submitted, the evidence of Ms Maynard, "extinguished any debate as the existence of privilege in the [d]ocuments" such that it was an appropriate exercise of the discretion afforded in s 133 not to inspect the documents.
We acknowledge that Gleeson CJ and Gaudron and Gummow JJ in Esso Australia Resources Ltd v Commissioner of Taxation (at [52]), while noting that a claim of privilege may be "not be conclusively established by the use a verbal formula", stated that a court "should not be hesitant to exercise" its power to examine documents where there is a disputed claim. However, we also agree with the remarks of Giles JA (with whom Mason P and Beazley JA agreed), in State of New South Wales v Jackson [2007] NSWCA 279 at [24] to the effect that where the parties have put evidence before the court (or Commission) which goes beyond the use of verbal formula, the court (or Commission) "should not unnecessarily pay regard to material which cannot be known to the party challenging the claim to privilege." The evidence in this case did not use mere 'verbal formula' and as already noted it was open for the Commissioner to conclude that the existence of privilege had been established such that it was unnecessary for him to inspect the documents to confirm that they were so privileged.
[7]
Ground 7
Mr Mallegoda contended that the Commissioner erred in finding that the time of the decision to reject his application for employment was made before 9:00am on 24 February 2023 without evidence, when the actual decision was made later at 3:16pm on the same day when proper written notification was provided at 4:00pm on the same day.
The Decision reveals that no such finding was made by the Commissioner, explicitly or implicitly. To the contrary, the transcript reveals that the Commissioner made it clear that the timing of the decision not to proceed with Mr Mallegowda's application for employment was a matter to be determined in Mr Mallegowda's substantive application. [2]
[8]
Ground 8
Mr Mallegowda submitted that in dismissing his motions "for the reasoning provided and, in the manner so done … the Commissioner failed to afford him procedural fairness and natural justice." A denial of procedural fairness is an error of law, however it is not sufficiently arguably that any such error was made in this case.
Mr Mallegowda's written submissions in support of this ground amount to nothing more than a general grievance with the outcome of his applications. In oral submissions he contended that he had been denied procedural fairness because the Commissioner had required him to make oral closing submissions immediately after concluding his cross-examination of Ms Maynard, when he did not have the benefit of transcript, and that the Commissioner then delivered his decision ex tempore without properly considering the matter.
There is no substance in these submissions. We agree with the Transport Secretary that any objective reading of the transcript and the Decision demonstrates that Mr Mallegowda was afforded procedural fairness.
Mr Mallegowda was given the opportunity to put on evidence, to make written and oral submissions and was even given the opportunity to cross-examine Ms Maynard, which is unusual in interlocutory proceedings, particularly where Ms Maynard is a solicitor. It is clear that the Commissioner allowed Mr Mallegowda a great deal of time and provided him with considerable assistance, to ensure that Mr Mallegowda was afforded a fair hearing in respect of the motions. Requiring Mr Mallegowda to make oral submissions without the benefit of transcript, this being the usual practice in the Commission, particularly for interlocutory applications, did not result in a denial of procedural fairness. Mr Mallegowda submitted that he did not pick up until he obtained the transcript that Ms Maynard had, in his view, only given evidence to explain why five emails were privileged and that she did not give any evidence in respect of another three emails, and so he did not raise that point with Commissioner Sloan. However, as we have explained in relation to ground 1, there is no substance to this point. It is not a matter which might have resulted in a different outcome.
[9]
Conclusion
The application for leave reveals no appellable error, nor any substantial issues of law and principle which have implications for the wider jurisprudence of the Commission. Our observations regarding the application of UCPR rr 1.8 and 1.9 reflect the established practice in the Commission. There is no matter arising in the proposed appeal which is of such importance, particularly given the interlocutory nature of the decision to be appealed from, such that, in the public interest, leave should be granted.
Leave to appeal is refused.
[10]
Endnotes
Special leave dismissed with costs, 2 October 2010 s118/2009.
See e.g. Tcpt, 10 October 2023, p 72(8) - (13).
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 March 2024
On 2 March 2023 the appellant, Mr Mallegowda, filed an application for relief from victimisation pursuant to s 213 of the Industrial Relations Act 1996 (NSW) (IR Act) arising from a decision of the respondent, the Transport Secretary, not to employ Mr Mallegowda as a project manager. On 24 May 2023 Mr Mallegowda filed an amended application for relief from victimisation. Mr Mallegowda had previously been employed by the Transport Secretary.
Mr Mallegowda asserts that the Transport Secretary improperly refused to employ him because he had previously made complaints against the Transport Secretary including three to the Australian Human Rights Commission, two to the Anti-Discrimination Board and had brought an unfair dismissal claim in this Commission, which had been settled. He asserts, amongst other things, that the Transport Secretary gave false reasons for rejecting his application, specifically that he had a criminal history (which he does), that he did not make it through the pre-employment checks and that his earlier employment with the Transport Secretary had been terminated in 2017 following a disciplinary investigation.
The application was set down for hearing on 10 October 2023 before Commissioner Sloan. On that day, before commencing the hearing of the substantive application, Commissioner Sloan heard two notices of motion brought by Mr Mallegowda.
The first motion had been filed on 14 September 2023 and sought orders that the Commissioner, pursuant to s 133 of the Evidence Act 1995 (NSW), examine certain documents which had been produced by the Transport Secretary pursuant to a summons to produce, over which the Transport Secretary had claimed privilege, and, if the Commissioner was not satisfied that the documents were in fact privileged, that he make an order granting Mr Mallegowda access to the documents.
The second motion had been filed on 28 September 2023 and sought leave to issue a summons to Mr Paul McKaysmith, an employee of the Transport Secretary, to attend and give evidence.
Commissioner Sloan dismissed both motions on 10 October 2023: Mallegowda v Transport Secretary (No 2) [2023] NSWIRComm 1103 (Decision). After delivering the Decision ex tempore, Commissioner Sloan granted Mr Mallegowda an adjournment of the hearing to enable him to consider whether to appeal the Decision. On 31 October 2023, Mr Mallegowda filed an application for leave to appeal and appeal against the Decision (Application). Mr Mallegowda's substantive claim against the Transport Secretary has not yet been heard.
At the hearing of the application for leave to appeal Mr Mallegowda withdrew his application for leave to appeal from that part of the Decision dismissing his motion for leave to issue a summons to Mr McKaysmith. He also withdrew two applications to introduce fresh evidence: one that had been articulated in the Application and the other, which had been articulated in an affidavit of Mr Mallegowda, sworn and filed on 4 December 2023, which was read at the hearing for leave to appeal, before the application for further evidence was withdrawn. Thus, the only application before the Full Bench is for leave to appeal, and if leave is granted, to appeal, the decision of Commissioner Sloan to dismiss the notice of motion filed on 14 September 2023.
For the reasons developed below, leave to appeal should be refused.
For completeness we also record that Mr Mallegowda made an informal application that the matter be reallocated to a different Commissioner for hearing due his concern that his "relationship" with Commissioner Sloan "is estranged" and that Commissioner Sloan "has a pre-emptive position on many issues". The Full Bench informed Mr Mallegowda that if he contended that Commissioner should disqualify himself from hearing the substantive matter by reason of pre-judgment or bias, he should make that application to Commissioner Sloan: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 97 ALJR 419 at [30] (Kiefel CJ and GagelerJ), [88], [89], [96] (Gordon J), [121] - [130] (Edelman J), [193] (Stewart J). The Full Bench also informed Mr Mallegowda that he may have a right to request that a different member of the Commission hear the matter pursuant to s 173 of the IR Act, however again, that is a matter that needs to be raised with Commissioner Sloan in the first instance and was not properly a matter for consideration by the Full Bench in the present application for leave to appeal.
The Decision Below
Mr Mallegowda asserted before Commissioner Sloan that the documents produced by the Transport Secretary over which privilege was claimed, did not attract privilege and, if they did, that privilege had been waived. He moved for Commissioner Sloan to confirm this by inspecting the documents pursuant to s 133 of the Evidence Act 1995 (NSW) which provides:
133 Court may inspect etc documents
If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.
It was, and is, not in dispute that the Transport Secretary bore the onus of establishing that the documents were privileged. To do that 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.
Commissioner Sloan explained the Transport Secretary's position and the nature of Ms Maynard's evidence as follows:
14. 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.
15. 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.
16. 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.
17. 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.
We note that the basis for the Transport Secretary's claim for privilege also includes that the communications related to an anticipated Australian legal proceeding, however, as will shortly be explained, the validity of this claim did not need to be determined below.
Commissioner Sloan outlined the basis upon which Mr Mallegowda contended that the documents in question did not attract privilege at [19]:
"[Mr Mallegowda] 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."
Applicable principles to the granting of leave to appeal
Pursuant to s 188 of the IR Act, an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
The Full Bench is likely to grant leave where the issues are of some novelty, raise substantial issues of law and principle, and have implications for the wider jurisprudence of the Commission: Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178; 320 IR 249 (Nurses and Midwives') at [21] (Walton J).
The extent to which errors be ultimately established is not a matter to be finally determined on the question of leave but only on a full hearing of the appeal. Leave to appeal is attracted if the Full Bench is satisfied that the appeal raises 'serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal': Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 at 326 [4] (Walton J, Vice-President, Hungerford J and Commissioner Bishop), cited with approval by Walton J in Nurses and Midwives' at [21(3)].
Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave: Box Valley Pty Ltd v Price [2000] NSWIRComm 117; 97 IR 484 at 484 [4] (Walton J, Vice-President, Hungerford J and Commissioner Cambridge). The Full Bench should not interfere with findings of fact unless the Full Bench is of the opinion that they were not reasonably open on the evidence: Hussmann Australia Pty Ltd v Walker (1993) 31 NSWLR 189 at 201 (Hill J) (both cases cited with approval by Walton J in Nurses and Midwives' at [21(6)].
In the case of discretionary decisions, it is not enough that the Full Bench would have come to a different view. It must be shown that the Commissioner at first instance failed to properly exercise the discretions committed to them: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16; 250 IR 412 (Walton J, President, Kite AJ and Newall C) at [10].
As is the case in other fora, interlocutory appeals of a procedural nature are generally deprecated and discouraged: Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120 (Walton J, Acting President, Staff J and Macdonald C at [100]. Exceptions to this approach may arise where the interlocutory procedural issue the subject of an appeal, has the effect of finally determining a matter or conclusively altering substantive rights or where an interlocutory appeal stands well above an ordinary appeal as to practice and procedure: Paula Lee at [101].
It is expedient to reproduce the whole of Commissioner Sloan's response to these contentions:
"20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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."
In respect of his claim that if privilege does attach to the documents, it had been waived, Mr Mallegowda relied upon a statement of Darren Keenan which the Transport Secretary had filed in respect of Mr Mallegowda's substantive claim. Mr Mallegowda maintained that pursuant to s 122 of the Evidence Act, Mr Keenan, by virtue of various passages in his statement, had waived privilege.
Again, it is expedient to reproduce the whole of Commissioner Sloan's response to this contention:
"31. 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.
32. 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.
33. 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.
34. 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].
35. 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.
36. For these reasons, I am not persuaded that there has been a waiver of privilege in any of the relevant documents."