Starr v Superannuation Administration Corporation

NCAT Administrative and Equal Opportunity|2015-04-15

reasons for decision

The main issue in these proceedings is whether information to which the applicant has sought access would be privileged from production in legal proceedings on the ground of client legal privilege or legal professional privilege.
The applicant applied under the Government Information (Public Access) Act 2009 ("GIPA Act") for access to information in documents contained in his file for his membership of the State Superannuation Scheme, which is held by the respondent.
On 2 October 2014, the respondent's Information Access Coordinator wrote to the applicant, providing access to the information requested with the exception of twelve pages. The ground for refusing to provide those pages was that they contain material that would be privileged from production in legal proceedings on the grounds of legal professional privilege. The Information Access Coordinator informed the applicant that the officer making the decision had formed the view that the privilege in relation to the material should not be waived.
The applicant applied for review of the decision to refuse access to the information contained in the twelve withheld pages on 8 October 2014. On 29 October 2014, an internal reviewer of the respondent decided to affirm the original determination.
The applicant applied to this Tribunal for review of the respondent's decision on 27 November 2014.
On 3 February 2015, the matter came before me for a planning meeting. At the planning meeting, I directed the respondent to file and serve submissions by 10 February 2015, and the applicant to file and serve any submissions upon which he wished to rely upon by 3 March 2015. The parties consented to the matter being determined on the papers after that date.
The respondent filed submissions but the applicant did not.
Neither party filed any evidence, although the respondent provided, confidentially, the documents containing the information the subject of the privilege claim. The respondent's "Submission to NCAT" contained some assertions of fact, such as a statement that the respondent administers the superannuation scheme in question for the trustee, STC. I have taken this into account as "relevant factual material" within s 63 of the Administrative Decisions Review Act 1997 (NSW).

Identity of respondent

The applicant named the respondent as "Pillar Administration" in his application. The respondent did not indicate at the planning meeting or in its submissions that it should be named differently.
Under s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
After this matter had been reserved, I searched the Business Names Index on the Australian Securities and Investment Commission website. The search indicated that "Pillar Administration" is the business name of Superannuation Administration Corporation. I consulted the NSW Legislation website and confirmed that the Superannuation Administration Corporation is constituted under s 5 of the Superannuation Administration Authority Corporatisation Act 1999 (NSW).
I directed the Registry to write to the parties inviting them to inform the Tribunal within seven days if either of them objected to the name of the respondent being changed to Superannuation Administration Corporation. Neither party responded.
It is important that the parties to proceedings are legal entities and named as such. Accordingly, the Tribunal orders that the name of the respondent be changed from Pillar Administration to Superannuation Administration Corporation.

Relevant legislation

The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5).
A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).
By s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 to that Act. Clause 5(1) of Schedule 1 provides: 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.
In these proceedings, the burden of establishing that the decision to refuse access to the information is justified lies on the respondent (GIPA Act, s 105(1)).

RESPONDENT'S SUBMISSIONS

The respondent submitted that, for legal professional privilege to "attach to a document" under the Evidence Act 1995 (NSW), there must be a client and lawyer relationship, the document must be confidential and the document must have been brought into existence for the dominant purpose of enabling the client to obtain and/or the lawyer to provide legal advice or legal services. The respondent submitted that those elements had been satisfied for the twelve pages over which legal professional privilege was claimed.
As noted above, the respondent's submissions contained some factual material. The respondent stated in its submissions that it administers the State Superannuation Scheme for "STC," a trustee. It said that the trustee engaged external solicitors which evidenced a client and lawyer relationship and that the documents themselves were prepared for the purpose of providing legal advice.

Decision

The respondent's claim that the information sought is privileged requires me to consider whether cl 5(1) of Schedule 1 refers to legal professional privilege at common law, or to client legal privilege under the Evidence Act 1995 (NSW).

Whether common law or statutory test applies

There has been some divergence in decisions of this Tribunal and of the former Administrative Decisions Tribunal ("ADT") in considering this issue. Decisions which have applied the common law include Tziolas v NSW Department of Education and Communities [2012] NSWADT 69 ("Tziolas") at [28], Choy v Willoughby City Council [2012] NSWADT 277 at [16] and SL v University of Sydney [2011] NSWADT 65 at [17]-[20]. Decisions which have applied provisions of the Evidence Act 1995 include Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72, Colefax v Department of Education and Communities [2013] NSWADT 75 and Hargreaves v University of New England [2013] NSWADT 233 at [18].
Tziolas was an application for review of a decision made under the GIPA Act to refuse to provide access to information. The reasons given by N Isenberg JM of the ADT in Tziolas for applying the common law test included that this is consistent with the ADT Appeal Panel's approach to the meaning of the provision granting an exemption for documents that would be privileged from production in legal proceedings on the ground of legal professional privilege in cl 10 of Sch 1 to the Freedom of Information Act 1989 (NSW) ("FOI Act") (see Director General, Attorney General's Department v Cianfrano [2006] NSWADTAP 26 ("Cianfrano"), at [9] to [12]). The ADT Appeal Panel reasoned in Cianfrano that the Evidence Act 1995 did not apply because it "governs the adducing of evidence, not the production of documents" (at [9]), whereas the FOI Act exemption was concerned with the production of documents.
Isenberg JM observed in Tziolas (at [28]) that, since the decision in Cianfrano, provisions in the Evidence Act 1995 concerning legal professional privilege had been substantially amended. However, the Judicial Member noted that in Chan v Department of Education and Training [2010] NSWADTAP 7, the ADT Appeal Panel continued to adopt the traditional approach, notwithstanding those amendments. Accordingly, Isenberg JM followed the ADT Appeal Panel's decision that the common law test applied.
A different member of the ADT, Fitzgerald JM, adopted similar reasoning in SL v University of Sydney [2011] NSWADT 65 at [17]-[20]. That decision concerned provisions of the FOI Act.
In Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 ("Fitzpatrick"), Molony JM took a different approach, finding that the exemption for legal professional privilege under the FOI Act was to be determined by considering the provisions of the Evidence Act 1995. Molony JM came to that position as a result of amendments made to the Evidence Act 1995 by the Evidence Amendment Act 1997 (NSW) which inserted a new provision, s 131A. Section 131A provides in broad terms that, if a person is required to give information or produce a document and objects to doing so, the court must determine the objection by applying the provisions of Part 3.10 of the Evidence Act 1995. Division 1 of that Part concerns client legal privilege.
Molony JM made the following comments about the effect of the amendment (at [67]): All parties submitted and I agree, that for the purposes of clause 10, following the amendments made by Evidence Amendment Act 2007, 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. This is so whether one is considering the adduction of evidence (to which the repealed provisions of the Evidence Act 1995 applied) or the acquisition of evidence by compulsory disclosure processes, such as summons and discovery ((to which the repealed provisions did not apply).
In Colefax v Department of Education and Communities [2013] NSWADT 75 ("Colefax"), Molony JM addressed the question of whether the common law or the Evidence Act 1995 provisions apply to considering a claim of legal professional privilege under the GIPA Act. He decided that the Evidence Act 1995 provisions apply, for reasons he gave in Fitzpatrick in relation to the FOI Act, and also "because the legislature in the GIPA Act has specifically referred to the term 'client legal privilege,' which is that used in the Evidence Act" (at [26]).
The reasoning of Molony JM in Colefax and in Fitzgerald is persuasive and I respectfully agree that the provisions of the Evidence Act 1995 apply to the determination of the question of whether there is a conclusive presumption that there is an overriding public interest against disclosure of information within cl 5(1) of Schedule 1 to the GIPA Act. The decision of the ADT Appeal Panel in Chan v Department of Education and Training [2010] NSWADTAP 7 was a decision about the interpretation of provisions in the FOI Act, and it appears that the ADT Appeal Panel was not referred to, and did not consider, the effect of the amendments to the Evidence Act 1995 which commenced on 1 January 2009. Accordingly, I do not consider that I am bound to follow that decision.

Whether information would be privileged from production in legal proceedings

The respondent did not refer to any particular provisions of the Evidence Act 1995 in its submissions to support its claim of privilege. However, it used the language of both s 118 ("Legal advice") and s 119 ("Litigation") by referring to the provision of "legal advice" and "legal services". It is not clear whether it intended by the reference to "legal services" to claim litigation privilege under s 119 of the Evidence Act 1995. Later in its submissions, it stated "the documents themselves were prepared for the purpose of providing legal advice".
In the context of this statement, a fair reading of the submission is that the only privilege which is claimed is advice privilege. Even if the submissions could be construed as including a claim of litigation privilege, there has been no evidence provided to support a finding that the communications or documents in question were prepared for legal services relating to an existing or anticipated legal proceeding (see Evidence Act 1995, s 119). Accordingly, I have treated the respondent's claim as one for advice privilege.
Section 118 of the Evidence Act 1995 provides as follows: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
The term "client" is defined in s 117 of the Evidence Act 1995 to include, relevantly: (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, …
Section 118 of the Evidence Act 1995 is to be considered through the lens of s 131A of that Act, for reasons given above. Section 131A(1) provides as follows: 131A Application of Part to preliminary proceedings of courts (1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.
Thus, s 118 of the Evidence Act 1995 is to be read with necessary modifications as required by s 131A, for the purposes of considering the application of cl 5(1) of Schedule 1 to the GIPA Act.
As the respondent indicated in its submissions, the trustee, STC, engaged external solicitors to prepare a legal advice. The Superannuation Administration Act 1996 (NSW) continues a corporation constituted under the Superannuation Administration Act 1987 (NSW) (an Act which has been repealed) with the corporate name of SAS Trustee Corporation, and provides that it may also be called STC (s 48).
The first question to consider is whether the advice provided by external lawyers to STC is a confidential document or confidential communication which was prepared or made for the dominant purpose of a lawyer providing legal advice to a client. In its submissions, the respondent stated that the documents were prepared for the purpose of providing legal advice and that all the elements required to establish privilege "have been satisfied".
The respondent has, as stated above, provided very little evidence apart from the documents containing the information the subject of these proceedings. The onus is, of course, on the respondent to establish its privilege claim (GIPA Act, s 105(1)). This onus may be discharged by the Tribunal examining the documents the subject of the respondent's claim. In Chan v Department of Education and Training [2010] NSWADTAP 7, a decision concerning a claim of legal professional privilege under the FOI Act, the ADT Appeal Panel commented at [20]: The agency carries the onus of proof in establishing that documents are exempt on the ground of legal professional privilege under s 61 of the FOI Act: 'the burden of establishing that the determination is justified lies on the agency'. As Graham J said in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445: '27 It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence [various authorities cited].'
A similar point was made by Montgomery JM in Chamley v Sydney Children's Hospital Network [2013] NSWADT 197 at [32], when he observed that "[i]n 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."
It is clear from the face of the document prepared by external lawyers for STC that it was prepared for the dominant purpose of providing legal advice. It is also apparent from the face of that document that it was prepared by a lawyer and that STC is the client of the lawyer. It is not expressly stated in the document that it is a confidential communication. The respondent has asserted in its submissions that it was, but has not provided any evidence as to how the person drafting the submission came to this view or had knowledge of this. However, as the advice was prepared by a solicitor, who was subject to professional obligations to maintain client confidentiality, and it is clear from the document itself that it was an advice prepared in response to instructions from STC, it is reasonable to infer that the communication of the advice was confidential.
The next question to consider is whether the respondent was a client of the external lawyer for the purposes of s 118 of the Evidence Act 1995, since the respondent indicated in its submissions that the advice was provided to it by STC. There is no evidence to establish that the external lawyer was jointly engaged by STC and the respondent, so I am not satisfied that the respondent falls within paragraph (a) of the definition of "client" in s 117 of the Evidence Act 1995.
It is possible that the respondent is an "agent" of STC within paragraph (b) of that definition, but the respondent has not provided any submissions or evidence to support such a claim. It has stated in its submissions only that it administers the State Superannuation Scheme for STC. Under its governing statute, STC may enter into contracts or arrangements by which another person agrees to undertake certain functions of behalf of STC (Superannuation Administration Act 1996, s 53(1)). There is no evidence, however, that STC has entered into such a contract or arrangement with the respondent. Even if it had done so, the respondent has not submitted that this would make it an agent of STC for the purposes of the definition of "client" in s 117 of the Evidence Act 1995.
There is therefore insufficient evidence to conclude that the respondent is a client of the external lawyers.
It is possible that in providing the advice to the respondent, STC waived the privilege it held in the communication from its external lawyers. Section 122(2) and (3) of the Evidence Act 1995 provide: (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.
STC knowingly and voluntarily disclosed the substance of the advice to the respondent. Accordingly, subject to s 122(5), it is taken to have acted in a way inconsistent with objecting to the production of the document containing the advice (Evidence Act 1995, ss 122(2) and (3)(a) and 131A).
Section 122(5)(a)(i) provides: (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: (i) in the course of making a confidential communication or preparing a confidential document, or …
The term "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. (Evidence Act 1995, s 117).
The person who disclosed the advice to the respondent appears, from the face of the document, to be a legal officer of STC. There is no evidence that the legal officer was under an express obligation not to disclose the contents of the communication. Nor is there any evidence that the person or persons to whom the communication was made were under any such express obligation.
It is permissible to infer the existence of an implied obligation of confidentiality of a communication from the circumstances of the communication (Eric Preston Pty Ltd v Euroz Securities Ltd [2009] FCA 240 at [25]-[26]). It may be inferred from the circumstances in which the communication was made that the respondent and the individual to whom the communication was made were under an implied obligation not to disclose the contents of the communication insofar as this would disclose the substance of the external lawyers' advice. These circumstances were that the legal advice was communicated by a lawyer of a corporation, established by statute as the trustee for certain superannuation schemes, to another statutory corporation which administered a superannuation scheme for it.
For these reasons, STC is not taken to have acted in a manner inconsistent with it objecting to the production of information in the document containing the advice prepared by external lawyers (Evidence Act, ss 122(5)(a)(i), 131A). Accordingly, the information in the advice "would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege)" and I am satisfied that, as the respondent states, the person in whose favour the privilege exists has not waived the privilege (GIPA Act, Sch 1, cl 5(1)). For these reasons, there is an overriding public interest against disclosure of the information contained in the advice.
The communication from STC to the respondent, whereby the external lawyers' advice was forwarded to the respondent, contained other information which, if produced, would result in disclosure of the contents of the confidential advice from the external lawyers to STC. This is privileged under s 118. The information meeting this description is contained in the third to eighth paragraphs of the communication from STC to the respondent (taking the paragraph which has bullet points to be one paragraph). However, the remaining parts of that communication do not fall within s 118 of the Evidence Act 1994, as they would not disclose the contents of the external lawyers' advice to STC, or any other confidential communication which would attract the operation of s 118. There is therefore no overriding public interest against disclosure of the information in those parts of the communication and the applicant is entitled to have access to it. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2015

Evidence Amendment Act 1997(NSW)

Freedom of Information Act 1989(NSW)

Superannuation Administration Act 1987(NSW)

At a glance

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Judgment (7 paragraphs)

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Legislation Cited (9)

Cases Cited (2)

Cited By (7)