Saggers v Environment Protection Authority

Applicable legislation 10The Tribunal's function on review under section 63 of the ADT Act is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 11The applicable provisions of the GIPA Act have been considered in a number of decisions of this Tribunal. In Chamley v Sydney Children's Hospital Network [2013] NSWADT 197 I summarised the GIPA Act provisions that are relevant to this matter and in doing so I adopted an earlier summary by Judicial Member Molony in the matter of Battin v University of New England [2013] NSWADT 73. 12The objects of the GIPA Act are set out in section 3(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. 13'Government information' is given a wide meaning (section 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in section 4. It includes "(c) a public authority." Public authority is in turn defined in Clause 2 of Schedule 4 to mean, among other things, "a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument". The Respondent is an agency to which the GIPA Act applies. 14The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (section 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (section 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1 (section 11). Schedule 1 sets out information concerning which it is conclusively presumed that there is an overriding public interest against disclosure (section 14(1)). 15With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (section 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct 16There will only be an overriding public interest against disclosure when the public interest test in section 13 is satisfied. It provides - There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 17In considering whether there is an overriding public interest against disclosure section 16 provides that the following principles apply - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 18The public interest considerations against disclosure are limited to those set out in the Table to section 14. Section 14(2) provides that - The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. 19As Judicial Member Isenberg observed in Tziolas v NSW Department of Education and Communities [2012] NSWADT 69, it is relevant to consider under the GIPA Act that, unlike subpoena production and discovery, disclosure is uncontrolled: 38 Another relevant consideration is that, while the use of Parliamentary information provided to a court pursuant to court procedures such as discovery and subpoena may be controlled, whereas disclosure of information pursuant to the GlPA Act is necessarily unconditional and therefore cannot be controlled. 39 The consequence is that Folios 3-6 are protected by Parliamentary privilege and it is conclusively presumed that there is an [overriding public interest against disclosure] of that information. 20Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review. A decision made on internal review is a reviewable decision. A person aggrieved may seek a review by the Tribunal (section 100). When this provision is read with section 38 of the ADT Act, they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. 21In any review of a reviewable decision section 105 places the burden of justifying the decision on the agency concerned. In regard to legal professional privilege, the onus of proof to show that the disputed documents are privileged is on the EPA: Grant v Downs (1976) 135 CLR 674 at 689. 22Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides - (1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. ... 23Clause 5 of Schedule 1 to the GIPA Act provides - 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. 24In the present case the EPA's privilege claim is based on an asserted legal advice privilege. 25The question arises as to whether the common law or the Evidence Act 1995 provisions apply. Judicial Member Molony considered this issue in the matter of Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 and more recently in Colefax v Department of Education and Communities [2013] NSWADT 75. In Colefax v Department of Education and Communities he stated: 24 In Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 the Appeal Panel held that legal professional privilege for purpose of the Freedom of Information Act 1987 was legal professional privilege at common law, rather than client legal privilege under Division 1 of Part 3.10 of the Evidence Act 1995. In Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 I found that given the subsequent enactment of s 131A of the Evidence Act that , at [70] - ... the test for whether a document would be "privileged from production in legal proceedings on the ground of legal professional privilege" in proceedings in NSW courts, is now determined by the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995 and not by the common law of legal professional privilege. That conclusion is not one with which all other members of the Tribunal have agreed: see for example McGuirk v University of New South Wales [2011] NSWADT 169. 25 Since the commencement of the GIPA Act there have been a number of decisions dealing with the issue of client legal privilege, in which the issue of whether the common law or Evidence Act provisions apply has not been addressed. This is so because the conclusion would have been the same no matter which law was applied. 26 For myself, I consider that the question of whether or not information is privileged from production in legal proceedings on the ground of client legal privilege is to be determined by reference to the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995. This is so for the reasons I gave in Fitzpatrick and because the legislature in the GIPA Act has specifically referred to the term "client legal privilege," which is that used in the Evidence Act. In contrast, the Freedom of Information Act 1987 used the term legal professional privilege. The use of the Evidence Act terminology in my view evidences an intention that those provisions apply. 26I agree with that view. However, in the circumstances of this matter my conclusion would have been the same no matter which law is applied. 27Section 118 of the Evidence Act 1995 provides: 'Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) 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.'

Legal privilege 28The law in relation to claims for client legal privilege is clear. For a summary of the principles see Priest v State of New South Wales [2006] NSWSC 1281 from paragraph [21]. 29The onus of establishing the claim for client legal privilege falls on the party asserting or claiming the privilege and is met by establishing the facts giving rise to the claim: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689. 30Mere assertion of the claim, by way of a formulaic claim, is not enough: AWB Limited v Cole [2006] FCA 571; (2006) 152 FCR 382 at 402 [63]. What is required is exposure of facts from which an informed decision can be made as to whether the claim for privilege is supportable: National Crime Authority v S (1991) 29 FCR 203 at 211-212; AWB Limited v Cole (No. 5) [2006] FCA 1234 at [44]. The facts are to be proved on the balance of probabilities. 31The protection afforded to confidential communications and the contents of confidential documents made or prepared for the dominant purpose of a lawyer providing legal advice to a client is to be understood in a pragmatic sense. The term "legal advice" is not confined to telling the client the law, but includes advice as to what should prudently and sensibly be done in the relevant legal context: General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [77]- [78]. 32The purpose for which a communication is made or a document is created is a question of fact. Purpose and intended use must be determined objectively, having regard to all of the evidence. 33A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44]. 34Where two purposes are of equal weight, neither is dominant in the relevant sense. Hence a document is not privileged from production: Re Southland Coal Pty Limited [2006] NSWSC 899 at 14. If the most that could be said of a report is that the purposes for which it came into existence included a purpose of obtaining legal advice or assistance, then privilege will not apply: Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 at paragraph [50]; (1999) 201 CLR 49 at 69. 35An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: AWB Limited v Cole (No. 5) at 411 [107]. 36Client legal privilege is capable of attaching to communications between a salaried legal advisor and his or her employer provided that the legal advisor is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 at 96; AWB v Cole (No. 5) at [44]. Where client legal privilege is claimed over documents produced by an in-house lawyer, particularly when that in-house lawyer is employed in government service, the question is whether the document would meet the statutory test of being a confidential document, that is to say, was it prepared in such circumstances that the person who prepared it was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under the law: Commonwealth of Australia v Vance [2005] 157 ACTR 47 at 53 [24]. 37Advice given by lawyers outside the solicitor-client relationship is not protected: R v Shirose (1999) 133 CCC(3d) 257 at 288-9; Vance at 54 [28]. 38Section 117 of the Evidence Act 1995 contains definitions of confidential communication, confidential document, client and lawyer. Relevantly it provides: (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) ... confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. lawyer means: (a) an Australian lawyer, and (b) an Australian-registered foreign lawyer, and (c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and (d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c). ...

The dominant purpose for the disputed documents in this matter 39It is incumbent on the person asserting the privilege to demonstrate that the dominant purpose for the communication in issue was the provision of legal advice. In the case of GIPA Act reviews, that is consistent with the burden placed on the Agency by s 105(1). 40The Applicant raised issues in regard to the purpose behind the creation of the disputed documents and whether that purpose was improper. Where the issue of improper purpose is raised, it is for the party raising the issue to present evidence to support the claim. The Applicant referred the Tribunal to the Federal Court decision in AWB Ltd V Cole (No 1) (2006) 152 FCR 382 as authority for the principle that the appropriate test what constitutes an illegal purpose waiver to a claim of Legal professional Privilege is reasonable grounds for believing that the relevant communication was for an improper purpose or there is a prima facie case to the effect. 41There must be something to give colour to the charge. Gaudron J in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 she stated at 545 (footnotes omitted): Communications made in furtherance of future wrongdoing fall outside legal professional privilege, although there is no particularly precise statement as to the nature of the wrongdoing that produces that result. However, legal professional privilege clearly extends to the situation in which a person seeks advice with respect to past misdeeds. And, once that is accepted, it follows that copy documents which relate to those misdeeds are in no different position from other copy documents provided to a lawyer for the purpose of obtaining legal advice or for use in legal proceedings. Thus, they are privileged if they were made solely for one or other of those purposes. 42In Propend Brennan CJ stated at 514 (footnotes omitted): In determining whether a claim of legal professional privilege can be upheld, it is open to the party resisting the claim to show reasonable grounds for believing that the communication effected by the document for which legal professional privilege is claimed was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest. I state the criterion as "reasonable grounds for believing" because (a) the test is objective and (b) it is not necessary to prove the ulterior purpose but there has to be something "to give colour to the charge ", a "prima facie case" that the communication is made for an ulterior purpose. The purposes that deny the protection of privilege for a communication (whether documentary or oral) between a client and the client's solicitor or counsel include the furthering of the commission of an offence. 43However, it is not necessary to prove an improper purpose on the balance of probabilities. In AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 Young J stated at paragraphs [217] - [218]: 217 For the principle to apply, there must be more than a mere assertion or allegation of fraud or impropriety: Bullivant at 201, 203 and 204-205. In Propend at 514, Brennan CJ expressed the test as being one of 'reasonable grounds for believing' that the relevant communication was for an improper purpose. The requirement has also been described as one of a 'prima facie case': Butler v Board of Trade [1971] 1 Ch 680 ('Butler') at 689; cf Baker v Evans (1987) 77 ALR 565 at 574. In Kearney at 516, Gibbs CJ approved the test formulated in O'Rourke v Darbishire [1920] AC 581 at 604, namely that 'there must be something to give colour to the charge'; 'the statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact'. The High Court in Propend applied this test: at 514 per Brennan CJ, at 521 per Dawson J, 534 per Toohey J, 546 per Gaudron J, 556 per McHugh J, and 592 per Kirby J. 218 It is not necessary to prove an improper purpose on the balance of probabilities. The 'prima facie' test arguably reflects the fact that issues of legal professional privilege are usually dealt with in the interlocutory stages of a proceeding, but the authorities have not departed from that formulation where a declaration is sought in relation to privilege issues: Butler; Propend; Beazley. It must also be established, on the same prima facie basis, that the communication which is the subject of the claim for privilege was made in furtherance of, or as a step preparatory to, the commission of the fraud or wrongdoing. In Butler, Goff J found at 687 that a letter written by the plaintiff's lawyer which volunteered a warning that the plaintiff may incur serious consequences if he did not take care was not shown to be 'in preparation for or in furtherance of or as part of any criminal designs on the part of the plaintiff': see also Zemanek v Commonwealth Bank of Australia (unreported, Federal Court, Hill J, 2 October 1997). 44The Applicant's allegation is that in furtherance of an undertaking given at a Planning Meeting before the Tribunal, to either provide a notification ("the Newspaper Notification") that had been created under section 78 of the Protection of the Environment Operations Act 1997 ("the POEO Act") in relation to a particular licence or, if none existed, advice of the fact that none existed and the reason for the non-existence. However, the Applicant contends that rather than producing the Newspaper Notification, an officer of the EPA concocted a 'look like' document ("the alleged look like Notification") and advised that it was in fact the Newspaper Notification required under the POEO Act. 45The Applicant further contends that the disputed documents came into existence following the production of the alleged look like Notification. He also contends that at all times the EPA's legal officers have supported this attempt to pass off the alleged look like Notification as a legitimate Newspaper Notification under section 78 of the POEO Act. 46The Applicant submitted that this connection between the EPA's solicitors and this alleged attempt to deceive the Tribunal and the Applicant is the "improper purpose". He submitted that the disputed documents are a form of tailored advice to suit a result that was already known. It is the Applicant's submission that you cannot have proper legal advice for a purpose which is improper.

The requisite degree of independence 47In this matter the Applicant contends that Mr Verzosa and Mr Fox, the legal officers who prepared the disputed documents, were employed within the agency. The Applicant raised issues in regard to the independence of those legal officers. He referred the Tribunal to the Federal Court decision in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 ('the Telstra case') which discussed the independence of in-house lawyers. He submitted that the agency's in-house lawyers providing advice to internal clients do not have the requisite degree of independence to enable a claim of legal privilege to succeed. 48In the Telstra case Graham J observed at paragraph [12]: "12 No evidence whatsoever has been led by Telstra to establish the role which the various legal practitioners performed within Telstra. In particular, no evidence has been advanced to disclose the measure of independence of the legal practitioners in question and their ability to provide impartial legal advice, given the roles they have had to perform." 49Graham J stated at paragraphs [35] - [41]: 35 In my opinion an in-house lawyer will lack the requisite measure of independence if his or her advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer. On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied. 36 In the case presently before the Court, there is no evidence, as I have earlier remarked, going to the independence of the internal legal advisers involved in the communications said to have been brought into existence for the dominant purpose of providing or receiving legal advice. There is nothing to indicate from the description of the six documents with which the Court is presently concerned that they must be documents for which privilege is properly claimed. Different considerations may apply if, say, the documents in question were opinions expressed by identified senior counsel where one might start off with the premise that by its nature the document would have privilege attaching to it. This is not such a case. ... 41 It seems to me that there would be no real utility in inspecting the documents at this stage as the question of whether or not they were brought into existence for the dominant purpose of providing or receiving legal advice is unlikely to be apparent from the terms of the documents themselves. Much more would be required to establish that the communications were privileged as documents brought into existence for the dominant purpose of providing or receiving legal advice. Furthermore, there would be no opportunity afforded to the Minister to test the claims that may be made in that regard. 50The Applicant contends that all that took place in the circumstances leading to the creation of the disputed documents was an informal information gathering exercise of a legal nature from one government employee to another government employee, all taking place within the same government workplace all with the interests of their common employer foremost in their mindset. 51The Applicant contends that for it to be true legal advice, of a nature that captures legal privilege, the advice must be of a truly independent nature and the advice must be frank and fearless of any other fact or thing. He submitted that in Authorities such as the EPA any internal legal advices provided are tainted by a lack of independence and the suggestion of self-preservation of the group, rather than their being straight forward solicitor and client legal advices. As such, he submitted, that they do not have the requisite client - solicitor separations to acquire true legal professional privilege status. 52The Applicant submitted that it is for the EPA to discharge the onus to prove that its solicitors are independent solicitors who are able to provide truly independent legal advice. He says that the lack of independence of internal legal advisers is fatal to any claim for legal professional privilege. If independence cannot be established the claim of legal professional privilege cannot succeed.

Has privilege been waived? 53The Applicant also raised the issues of whether, if legal professional privilege attaches to the disputed documents, that privilege has been waived. 54The Applicant submitted that in introducing the legal advices into her evidence before the Tribunal during the Hearing in a previous matter (see Saggers v Environment Protection Authority [2013] NSWADT 109) Ms. Lowe has waived the EPA's right to withhold the disputed documents.

The EPA's case 55The EPA submitted that the Tribunal should affirm the decision to refuse access to the disputed documents. 56The EPA has provided a copy of the disputed documents to the Tribunal. The EPA also relies on the evidence of Mr Andrew Macdonald, Principal Legal Officer in the Legal Services Branch of the NSW Office of Environment and Heritage ("the OEH") - an office within the NSW Department of Premier and Cabinet. Mr Macdonald provided an affidavit and also attended the hearing and was cross-examined. 57Mr Bateman provided written submissions and also provided oral submissions at the hearing. 58Mr Macdonald's evidence dealt with issues raised by the Applicant in regard to the independence of Mr Verzosa and Mr Fox. 59He provided an overview of the relationship between the EPA, the OEH and the Department of Premier and Cabinet. His evidence is that the OEH, the Office of the Environment Protection Authority and the EPA are separate government agencies. 60In February 2012, the OEH and the EPA entered into an agreement for the OEH to provide corporate services to the EPA. Part of the agreement involved the provision of services by the Legal Services Branch of the OEH to the EPA. Another part of the agreement involved the provision of the services of OEH employed Right to Information/Privacy Officers to the EPA in relation to requests under the GIPA Act. Ms Lowe was employed by the OEH as a Right to Information/Privacy Officer and acted as agent for the EPA. 61Mr Macdonald's evidence is that the Legal Services Branch employs a number of solicitors and that each of those solicitors holds a current practising certificate entitling them to practice as a solicitor in New South Wales. The solicitors provide legal advice and conduct litigation. They have no responsibilities or roles within the OEH in addition to their employed positions as solicitors. They do not perform any functions for the EPA other than as solicitors. Their remuneration is not connected in any way to the commercial or regulatory performance of the EPA. 62The Legal Services Branch is physically located separately to other sections of the OEH. It is located in a secure area and access is controlled by electronic keys. 63Solicitors in the Legal Services Branch are divided into two sections. The Litigation Section deals primarily with matters that are either presently litigated or may be litigated. The Legislation and Advice Section deals primarily with providing legal advice in response to formal requests for advice and providing advice on development of legislation and on policy issues. 64The most senior person within Legal Services Branch is the Executive Director Legal Services. The Executive Director of Legal Services reports to the Chief Executive of the OEH. Solicitors within the Litigation Section report to the Manager of Litigation. Solicitors within the Legislation and Advice Section report to the Manager of Legislation and Advice. Both Managers report to the Executive Director Legal Services. The EPA played no role in the organisational structure of Legal Services Branch. 65The Legal Services Branch retains files in both electronic and hardcopy forms. Electronic copies of documents are retained on a drive that, apart from the OEH's IT staff, can only be accessed by staff within the Legal Services Branch and specialist investigators, all of whom are employed by the OEH. 66Hardcopies of active Legal Services Branch files are secured within the Legal Services Branch secure area. 67Mr Macdonald's evidence is that the solicitors in the Legal Services Branch operate in an environment of confidentiality arising from the circumstances of their employment, occupation and duties as solicitors. The obligation to maintain confidentiality is well understood by solicitors within the Legal Services Branch. The obligation to maintain confidentiality applies to communications with the client, particularly in relation to providing of legal advice, whether responding to a formal request for advice or responding to requests for advice through the duty solicitor service. The obligation to maintain confidentiality over communications relates especially to communications with the client regarding current investigations and current litigated matters. 68He stated that Mr Fox, Principal Legal Officer, and Mr Verzosa, Senior Legal Officer, were at all relevant times employed in the Litigation Section of the Legal Services Branch. At all relevant times each held a current NSW practising certificate. 69As noted above, Mr Macdonald attended the hearing of this matter and was cross-examined. 70Mr Bateman submitted that the present case is readily distinguishable from Telstra. Whilst the EPA acknowledges the general principles to be drawn from Telstra, it contends that one primary point of difference is that Telstra retained 'in house' solicitors. He relies on Mr Macdonald's evidence that the OEH is an entirely separate government agency to the EPA. Mr Fox and Mr Verzosa were employed by OEH and provided the confidential legal advice that is contained within the disputed documents. 71Mr Bateman submitted that the evidence provided by Mr Macdonald, and the disputed documents themselves, provide evidence sufficient to satisfy the onus of proof and that accordingly the claims of privilege should be upheld.

Discussion 72As noted above, I have been given copies of the disputed documents and I have read those documents. The summary of those documents that Mr Bateman has provided is a reasonable one. I agree with the EPA that Document 2 is not a document that falls within the scope of the Applicant's application as it does not contain any actual "requests for advice" or any response to such requests. I therefore limit my discussion to the remaining disputed documents i.e. Documents 6, 7 and 8. 73In some cases it will be obvious from an examination of the written communication itself that the dominant purpose of the communication was the provision of legal advice. That is the case with the disputed documents in this matter. In any event, the evidence on which the Respondent relies places it beyond doubt. 74The disputed documents clearly fall within the scope of section 118 of the Evidence Act 1995. It is readily apparent from a consideration of the documents that they comprise legal advice provided in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client. In my view, it is information to which legal professional privilege applies. 75On the basis of the evidence provided by Mr Macdonald, I am satisfied that the circumstances in which the solicitors employed in the Legal Services Branch of the OEH have the requisite degree of independence. I am satisfied that the relationship of lawyer and client existed with respect to the creation of the disputed documents that the circumstances of their creation otherwise meet the requirements necessary for client legal privilege to attach to the communications. 76I note that the Applicant has asserted that the disputed documents were created for an improper purpose. The relevant issue is the reason for which advice was sought. If it was in furtherance of an illegal or improper purpose, it may mean that the communication is denied the protection of privilege. However, it is not sufficient that the Applicant merely asserts that there was an improper purpose. There must be something to give colour to the charge. 77In Candacal Pty Ltd v Industry Research and Development Board [2005] FCA 649 Lee J stated that a party relying upon the ground that the purpose of bringing the communications into existence is an improper purpose to oppose a claim of privilege made in respect of such communications must be able to show reasonable grounds for believing that such an improper purpose underlay the creation of the communications. His Honour concluded at [122]: 122 Such a claim when made is of a serious nature and it must follow that the material presented in support must appear to have cogency and be sufficient to establish prima facie that the claim is made out. Whilst I am satisfied that the claim by the applicants is open on the material referred to and that the claim has been made honestly, I am not satisfied that it is shown to the requisite degree that agents of the Board undertook communications with legal practitioners for an ulterior and improper purpose. 78An improper purpose is not to be inferred lightly. Mere allegation is not enough. If the purpose of a decision has to be ascertained by inference, a presumption of regularity operates: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; (1990) 170 CLR 649 per Gaudron J at 671-2. 79In my view, the Applicant has merely made an unsubstantiated allegation of improper purpose. On their face, the disputed documents have clearly not been created for the improper purpose that the Applicant has alleged. 80The question then arises with respect to whether or not the privilege that attaches to the communications has been waived. The Applicant has alleged that Ms Lowe waived the privilege by reference to the contents of the disputed documents. I do not agree. The mere reference to the existence of the advice is not sufficient to waive privilege in the advice. 81I agree with the EPA submission that the evidence provided by Mr Macdonald, and the disputed documents themselves, provide evidence sufficient to satisfy the onus of proof and that accordingly the claims of privilege should be upheld. 82In my view, the privilege claims in respect of the disputed documents are justified. 83Where clause 5(1) of Schedule 1 to the GIPA Act is satisfied, there is a conclusive presumption of an overriding public interest against disclosure. The Tribunal has no discretion as to whether or not there is an overriding public interest against disclosure. The Applicant has no statutory entitlement to be provided with government information where there is an overriding public interest against disclosure. 84In the circumstances, the correct and preferable decision is to affirm the decision under review and to refuse access to the disputed documents.

Costs 85The EPA has sought costs in relation to the hearing in this matter. Each of the parties has provided written submissions in relation to the issue of costs. 86The position on costs of proceedings is set out in section 88 of the ADT Act, as follows: 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs . (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. 87As can be seen from the terms of subsection 88(1), the general rule is that each party pay its own costs of the proceedings. However, the Tribunal does have power (i.e. a discretionary power) to award costs if it is satisfied that it is fair to do so, having regard to the matters set out in subsection 88(1A). 88In AT v NSW Police [2010] NSWCA 131, the Court of Appeal considered the application of section 88 of the ADT Act. At paragraph [26], the Court held that the criterion of fairness was "not qualitatively different" from "the exercise of an unfettered discretion". At [33], the Court emphasised the general principle that each party should bear its own costs adding that: Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in subs (1A), but subject to the generality of para (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act.

The EPA's application for costs 89The EPA relies upon section 88(1A)(a)(vi), section 88(1A)(c) and section 88(1A)(b) in relation to this application for costs. That is:

• That the Applicant conducted the proceedings vexatiously;
• That the Applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings; and
• That the Applicant has made a claim that has no tenable basis in fact or law.

Vexatious 90Mr Bateman submitted that the conduct of the proceedings by the Applicant has been vexatious. 91With respect to the question of whether or not proceedings are vexatious Mr Bateman referred to views expressed in Valastar Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADTAP 84, citing Attorney General v Wentworth (1988) 14 NSWLR 481 at 487-491 with approval. At paragraph [32] of Valastar the Appeal Panel stated: 32 In the context of an issue whether a person should be found to be a vexatious litigant within s84(1) of the Supreme Court Act 1970, Attorney General v Wentworth (1988) 14 NSWLR 481 at 487-491 provides in our opinion instruction which also has some relevance for present purposes. In that case, Roden J held that no order should be made against the litigant involved under that provision but expressed his conclusions as to the relevant law at p 491 as follows: "It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. ... 92The EPA submitted that the conduct of the proceeding has been vexatious in the sense of the Attorney General v Wentworth point one, in that the Applicant made allegations which are unsupported by any evidence whatsoever. In support of this submission Mr Bateman referred to an extract from the Applicant' submissions, that I referred to in paragraph [44] above, where the Applicant alleged that an officer of the EPA concocted a 'look like' document and attempted to deceive the Tribunal. 93The EPA also submitted that the conduct of the proceeding has been vexatious in that it is clear from the Applicant's submissions that the proceedings have been brought for a collateral purpose (Attorney General v Wentworth point two). Mr Bateman submitted that the collateral purpose was that of determining whether the EPA has complied with section 78 of the POEO Act. The EPA submitted that whether the EPA has complied with section 78 of the POEO Act is not for determination in these proceedings and arguably not justiciable in this jurisdiction.

The relative strengths 94As to section 88(1A)(c) of the ADT Act, the EPA submitted that the balance of the relative strength of the claims made by each party is such that it is fair that the EPA be awarded its costs. 95The EPA submitted that its claim that the disputed documents are privileged is a very strong one. By contrast, it argued that the Applicant's claim that the disputed documents are not privileged is very weak and without tenable basis in fact or law. It submitted that the Applicant provided no evidence at all to support his assertions that the disputed documents lacked the relevant qualities that attract protection under the principles of client legal privilege or in regard to his claim of improper purpose. 96Mr Bateman submitted that this position is to be contrasted with that of the EPA, which made Mr Macdonald available for cross examination and made the disputed documents available to the Tribunal for inspection.

Prolonging unreasonably 97The EPA submitted that the Applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings. 98Mr Bateman submitted that in these circumstances, it is fair to award the EPA its costs of the proceedings. The EPA estimated that the total amount of time worked on this matter to date to be 56 hours 20 minutes. It calculated its costs of the proceedings as $13,585.

The Applicant's response 99The Applicant disputed the EPA's assertions. He denied that the proceedings are vexation. He asserted that there were no proceedings instigated against any "person". Rather, he argued that his application seeks review of an agency decision under the GIPA Act. 100The Applicant also disputed the EPA's assertion that the proceedings have been brought for a collateral purpose. He submitted that the proceedings are to establish whether the EPA's claim of client legal privilege stands scrutiny by an independent authority, either under the Evidence Act or the common law. 101He further submitted that there is no requirement for applicants under GIPA to explain or to justify their motivation for requesting government documents. He argued that the EPA simply surmises in regard to his motivation and that whether this surmise is right or wrong bears no significance under the law. 102The Applicant disputed the EPA's assertion with respect to the relative strength of the claims made by each party. He argued that his rights to a review under the GIPA Act have been accepted and were not at any time questioned by the Tribunal or by the EPA. It is the Applicant's view that the EPA's claim is unsustainable; however he submitted that it is for the Tribunal to decide the strength or otherwise to the EPA's claim of client legal Privilege. He contends that the EPA needs to demonstrate most clearly the measure of independence between the solicitor and their employer. 103In regard to the EPA's assertion that he provided no evidence that the disputed documents lacked the relevant qualities that attract legal privilege, the Applicant argued that it is not for him to state categorically that the documents in question do or do not hold the relevant qualities. He submitted that this is a review under the GIPA Act and it will be decided by way of the evidence of Mr Macdonald, written and oral submissions and a reading of the documents themselves. 104In regard to the EPA's submission as to his assertion of improper purpose, the Applicant submitted that the issue is one that the Tribunal can take into consideration when assessing the disputed documents. He says that his repeated claims that the EPA has not complied with section 78 of the POEO Act have never been rebutted by way of any documentary or oral evidence. As to his evidence, he contends that he relies upon the agencies acquiescence and failure to publicly deny his repeated claim of wrong doing. 105The Applicant disputes the EPA's assertion that he has been responsible for prolonging unreasonably the time taken to complete the proceedings. Rather, he submitted that it was the EPA's failure to abide by the Tribunal's Rules and their introduction of a witness statement into their submission that caused the delay. 106He submitted that there is no tenable basis for the general principal that each party should bear its own costs in the Tribunal to be overturned. He contends that the principal of parties to pay their own costs was fully understood by both parties at the commencement of the proceedings and should stand at its conclusion. 107He submitted that section 100 of the GIPA Act would be severely undermined if the Tribunal agreed with the view that agency in house-lawyers legal costs could be awarded against citizens exercising their legal rights under section GIPA 100.

Discussion 108I do not agree with the EPA's assertion that the Applicant conducted the proceedings vexatiously. As the Applicant has pointed out, these proceedings are an opportunity for an applicant seeking access to information that is held by an agency to have the agency's determination externally reviewed. The onus is on the agency to justify its determination. In doing so, an applicant is entitled to test whether a claim for legal privilege stands the scrutiny of the external review. An applicant who does not have access to the withheld information is not in a position to know its contents and therefore can only raise issues that might be relevant to the Tribunal's consideration. 109For the same reason, I do not agree with the EPA's assertion that the fact that Applicant's claim had no tenable basis in fact or law should form the basis of a costs order. It is clear that pursuant to section 100 of the GIPA Act he is entitled to apply to the Tribunal and seek review of the EPA's decision. The Applicant is not legally qualified and is self-represented. While I consider that his allegations regarding improper purpose could have been framed differently, in a less pejorative manner, I accept his argument that he raised issues that he believed should be taken into account in the review process. The onus is on the agency to justify its decision in circumstances where the Applicant does not know the contents of the withheld material. 110However, I do agree with the EPA's assertion that the Applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings. In my view, this matter could have been determined 'on the papers' i.e. on the basis of the material filed without the need for a hearing. 111The Applicant was critical of the EPA's decision to rely on Mr Macdonald's evidence. I do not agree with that criticism. 112As noted above, the onus is on the EPA to justify its decision. The Applicant had raised issues with respect to the independence of Mr Verzosa and Mr Fox. It was therefore necessary for the EPA to lead evidence in regard to the working environment in order to establish that independence. 113As Mr Bateman noted in his submissions, the EPA pointed to eight primary ways in which the evidence of Mr Macdonald establishes the professional relationship of the Legal Services Branch lawyers with the EPA as the client, and the independent character of the legal advice given.

• Mr Verzosa and Mr Fox each held a current practising certificate. the Legal Services Branch was part of a separate and distinct agency from the EPA. the Legal Services Branch lawyers were employed by the OEH, not by the EPA. the Legal Services Branch lawyers were not involved in the commercial activities of the client, their responsibilities are confined to being employed solicitors within OEH. Their remuneration was set under award and not tied to the commercial performance of the EPA Mr Verzosa and Mr Fox acted exclusively in their capacity as lawyers. At no time did they have any involvement in the day to day operations of the client, the EPA. the Legal Services Branch maintained electronic and hardcopy file keeping practices separate from the EPA and other parts of the OEH. each occasion on which legal advice was provided was in response to requests for advice. the independent character of the advice is apparent from inspection of the disputed documents. 114In that regard, the evidence of Mr Macdonald was crucial to the success of the EPA's claim for legal privilege. As the head of the Legal Services Branch, Mr Macdonald was an appropriate witness to provide that evidence. 115The Applicant requested the opportunity to test Mr Macdonald's evidence. He insisted that the matter be listed for hearing and that Mr Macdonald attend for cross-examination. He pointed to the Tribunal's published guidelines for preparing evidence for hearing. In particular he pointed to that part of the guideline which stated: Any witness who provides a statement or affidavit in support of your case should be available to give evidence in person at the hearing. This is the rule unless all other parties agree that the witness does not need to attend for cross-examination. 116The Applicant argued that as Mr Macdonald had provided an affidavit in support of the EPA's case, he should attend for cross-examination. The EPA objected to this course of action on the basis that the matter could be adequately determined on the basis of the written material. 117GIPA Act matters are commonly determined 'on the papers' without an oral hearing. A person will not always have the right to cross-examine witnesses. Hearings are most commonly held in circumstances where a person's credibility is in question or where there are apparent factual inconsistencies in the evidence before the Tribunal. 118In the present matter I acceded to the Applicant's request to be able to cross-examine Mr Macdonald and the matter was listed for hearing. However, no useful cross-examination took place. Mr Macdonald's evidence was not tested in any material sense. 119As I have noted above, the Applicant is not legally qualified and is self-represented. I therefore make no criticism of his efforts at cross-examination. However, the result was that the hearing was unnecessary and put the EPA to unnecessary expense. In my view, the Applicant should contribute towards the EPA's costs of attending the hearing. 120I note that the EPA has provided an estimate of the cost of conducting this matter. In my view, the vast majority of those costs would have been incurred regardless of whether or not the matter had been listed for hearing. The submissions that were made at the hearing were essentially those already presented in the written submissions. Mr Macdonald's evidence was in the form of an affidavit and minimal additional time would have been necessary in his preparation for the hearing. 121Mr Bateman appeared at the hearing on behalf of the EPA. As a Senior Legal Officer his time is costed at $330 per hour. 122In my view, the EPA has been unnecessarily disadvantaged in needing to attend the hearing in circumstances where the matter could have been determined on the basis of the material filed by the parties. It is "fair" that the EPA is able to recover some of the costs that it incurred in relation to the hearing. 123In my view, if not otherwise agreed between the parties, it is appropriate that the Applicant should pay an amount of $500 towards the EPA's costs of attending the hearing.

Order

1. The decision of the Respondent to refuse to provide, the Applicant access to the disputed documents is affirmed.
2. If not otherwise agreed between the parties, the Applicant it to pay the amount of $500 towards the costs that the Respondent incurred in relation to the hearing of this application. That amount is payable 28 days after the date of these reasons.

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: 28 March 2014