(2000) 205 CLR 337
Hula v Commissioner of Police (NSW) [2013] NSWADT 153
Johnson v Johnson [2000] HCA 48
Source
Original judgment source is linked above.
Catchwords
(2000) 205 CLR 337
Hula v Commissioner of Police (NSW) [2013] NSWADT 153
Johnson v Johnson [2000] HCA 48
Judgment (5 paragraphs)
[1]
The Applicant's complaint of delay
The Applicant's written and oral submissions focused on his complaints regarding the Respondent's conduct in dealing with his various access applications. In relation to the access application subject to these proceedings, the Applicant makes specific complaints of delay caused by the Respondents resulting in, according to the Applicant, abuse of the GIPA Act and a lack of good faith in exercising the functions conferred on them by the GIPA Act.
The issue of delay under the GIPA Act is relevant to two considerations. The first is that delay in processing an application according to the strict timeframes provided in the GIPA Act will impact the ability of an agency to charge processing fees in relation to the application. The second is that delay by an agency can form part of a complaint about conduct. Both issues are raised by the Applicant in these proceedings.
On the evidence, the access application made by the Applicant on 12 April 2016 was required to be determined by 10 May 2016 according to s 57(1) of the GIPA Act. On 10 May 2016 the Respondent sought an extension by consent from the Applicant to 16 May 2016, seemingly pursuant to s57(4) of the GIPA Act. The Applicant sought clarification on various issues from the Respondent by correspondence, but did not consent to an extension of time, so on 13 May 2016 the Respondent informed the Applicant that the application would be "processed as a late decision under s63(2) of the GIPA Act", and confirmed that "under s63(1), s63(3) and s63(4) of the GIPA Act your application fee will be refunded and no processing charge can be imposed".
The Applicant and Respondent continued to communicate via email regarding the scope of the access application and on 2 June 2016 Ms Plummer asked the Applicant if he had received the refund on the application fee. On 6 June 2016 the Applicant informed Ms Plummer that he had not received the refund. On 15 June 2016 Ms Plummer sought information from the Applicant in order to process the refund, which was provided to her on 16 June 2016. The application fee was refunded to the Applicant.
On the basis that the Respondent refunded the Applicant's application fee, and did not charge him any processing fees, the only issue before the Tribunal in relation to the Respondent's delay in processing the application is therefore whether and to what extent any delay can form a basis for the Applicant's complaints or allegations against the Respondent and its officers.
The period of time being complained of by the Applicant as the Respondent's delay is the period between 12 April 2016, when the Respondent received the access application, and 5 September 2016, when the reviewable decision was made by the Respondent.
The Respondent's affidavit of Jenefer Plummer addresses the Respondent's delays in dealing with this access application at [7]:
The delay in the processing of the application was caused by its high level of complexity, including sourcing documents from five different areas of the Department; the receipt of 91 documents of approximately 300 pages in response to one part of the request; the need to categorise each document and to assess it for any concerns relating to the privacy of third parties or other public interests against disclosure; and the need to make inquiries in relation to material archived by a private contractor.
The Respondent's actions in dealing with the access application are recounted at paragraphs 3 to 6 above. The Applicant specifically requested assistance from the Respondent on several occasions, both in the access application itself and in its email correspondence, in terms such as:
Advice & assistance required
I request that you provide me with the necessary assistance to make this application an application which:
Is valid
Remains valid such that the amended application is not determined to be an unreasonable & substantial diversion of resources or otherwise
Will give me access to as much of the information I have requested in initial or amended form as possible
In those circumstances, in the context of the Respondent's attempts to narrow and clarify the Applicant's requests, the Respondent engaging in extensive correspondence with the Applicant in an attempt to respond to the Applicant's concerns and questions, and the commencement of proceedings in the Tribunal on 12 July 2016 and subsequent case management, I do not consider the delay unreasonable and I find that the Respondent's delay in dealing with this access application does not support the Applicant's complaints.
[2]
The Applications pursuant to sections 112, 116, 117, 118, and 120 of the GIPA Act.
Much of the Applicant's extensive written submissions were concerned with his request for the Tribunal to refer the Respondent's conduct to the Minister pursuant to s112 of the GIPA Act, complaints that the Respondent and its officers had breached various provisions of the GIPA Act or demonstrated a "lack of good faith" in exercising their functions, and for the Tribunal to find that the Respondent had committed offences pursuant to ss116, 117, 118 and 120 of the GIPA Act.
The basis for a referral under s112 of the GIPA Act has been considered in previous proceedings involving the Applicant, including Zonnevylle v Department of Education [2017] NSWCATAD 101; Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, as well as Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303, Saggers v Environment Protection Authority [2013] NSWADT 204, Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189. I adopt the guidance provided by those authorities in my consideration of the application of s112 of the GIPA Act in these proceedings.
The allegations made by the Applicant against the Respondent and its officers incorporated many of the same allegations raised in previous proceedings in this Tribunal by the Applicant. These allegations traversed evidence filed in other proceedings and previously considered by the Tribunal, and which were the subject of submissions regarding misconduct, lack of good faith, and lack of integrity. As referred to above, I will not reopen findings made by this Tribunal in previous proceedings.
I agree with the Respondent's submission that "the applicant's attempt to re-litigate the questions of a referral under s112 in respect of the processing of GIPA #13 and GIPA #17 amounts to an abuse of process". To the extent that the Applicant's complaints refer specifically to the conduct of the Respondent in dealing with the access application subject to these proceedings, taking into consideration the evidence, including my findings on the issue of delay, there is insufficient basis on the evidence before me to make a referral under s112 of the GIPA Act with respect to any officer's conduct. I therefore decline to make the requested referral under s112 of the GIPA Act.
In relation to the Applicant's complaints and allegations regarding the Respondent's breaches of ss116, 117, 118, and 120 of the GIPA Act, s128 of the GIPA Act states:
128 Nature of proceedings for offences
(1) Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court.
(2) Proceedings for an offence under this Act or the regulations may only be taken by or with the authority of the Director of Public Prosecutions or the Attorney General.
I agree with the Respondent's submissions. The Local Court is the appropriate forum for dealing with any charge that an offence against any of these sections has been committed. The Tribunal has no jurisdiction to deal with these provisions.
[3]
Conclusion
For the reasons outlined, the correct and preferable decision is for the Tribunal to affirm the Respondent's reviewable decision of 5 September 2016.
The Tribunal finds insufficient basis for referring the conduct of any of the Respondent's officers pursuant to s112 of the GIPA Act, and has no jurisdiction in relation to alleged breaches of ss116, 117, 118, and 120 of the Act.
[4]
Orders
1. The Tribunal affirms the Respondent's decision of 5 September 2016.
2. The application for a referral pursuant to s112 of the Government Information (Public Access) Act 2009 is refused.
[5]
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
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 June 2017
Zonnevylle v Department of Education [2017] NSWCATAD 101
Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47
Category: Principal judgment
Parties: Peter Zonnevylle (Applicant)
Department of Finance, Services and Innovation (Respondent)
Representation: P Zonnevylle (Applicant in person)
Substantive application
The core of the applicant's complaints relate to two previous applications made under the GIPA Act, known as GIPA #13 and GIPA #17. Many of those complaints were considered by the Tribunal in Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, a judgment relating to the review of GIPA #17. At [10], the Tribunal summarised the relevant background, which also applies to these proceedings, as follows:
"... In summary:
the Applicant's allegations relate to two GIPA applications - referred to as "GIPA #13" and "GIPA #17";
there is an overlap between GIPA #13 and GIPA #17. Item 1 of the GIPA #17 access application requested information in respect of GIPA #13;
the GIPA #13 access application was made in 2012. The decision was largely handled by Ms Helen Dickenson. Ms Dickenson and others involved in the processing of GIPA #13 have since Ieft the Respondent;
…
Mr Johnson was the officer primarily responsible for responding to GIPA #17. At times, he worked under the supervision of Ms Elizabeth Verteouris;
In July 2014, the Respondent conceded that GIPA #13 had not been processed in time and that, accordingly, it was not entitled to levy a processing charge;
the Respondent also conceded that the Applicant was entitled to the information requested in item 1 of GIPA #17 and agreed to provide the documentation that had been located in response to GIPA #13;
the GIPA #13 information (which was requested in 2012) was ultimately released on 23 July 2014;
some material was located in relation to item 2 of GIPA #17 and it was released on 30 July 2014;
the Respondent subsequently became aware that GIPA #13 searches had failed to locate some documents. It requested that the Tribunal remit the application so that fresh searches could be performed. The remittal was ordered in November 2014;
a large number of other documents were located and that material, with some redactions, was ultimately released in December 2014 (i.e. GIPA #13 information that was requested in 2012 was not released until December 2014);
during the hearing, the Applicant submitted that referrals under section 112 should be made against a number of officers of the Respondent. He identified a number of officers and conduct that he alleged indicates that the officers had failed to act in good faith;
there is often no clear differentiation between conduct alleged to have been committed by a specific officer and the alleged conduct of the Respondent;
most of the officers who the Applicant has identified were not exercising a function conferred on them "by or under" the GIPA Act and therefore the Applicant's allegations concerning those officers are not within the scope of this request;
the Applicant alleged that officers of the Respondent, including Ms Dickenson, Ms Wiggins and Ms King and various other senior officers, acted inappropriately in the course of dealing with GIPA#13. In particular he contends:
he never received a copy of the decision made in GIPA #13;
during GIPA #13, some material was redacted;
GIPA #13 was not decided within time;
the Respondent initially decided to charge a processing fee;
the decision-makers did not treat various correspondence from him as an application for an internal review;
senior staff within the Respondent (including, at least, Mr Lean), made false and misleading statements and were otherwise inappropriately motivated to obstruct GIPA #13;
Ms Dickenson sent numerous emails to him on 17 April 2012;
the copy of one of the documents which the Respondent released was not legible;
the Respondent failed to respond to the Applicant's complaints about Ms Dickenson;
Ms King may have made a false and misleading statement by emailing that she was not the person the Applicant was trying to contact.
the Applicant alleged that officers of the respondent, including Mr Johnson and Ms Verteouris, acted inappropriately during GIPA #17 by:
refusing to reply to his correspondence of 9 April;
failing to accede to his requests to send all correspondence by email;
initially deciding that the application was invalid and suggesting a rescoping of the application, particularly by omitting parts 2 and 3 of the application;
failing to advise the applicant appropriately regarding his application;
failing to decide the application in time;
inappropriately relying on the excluded information exemption.
the Applicant alleged that those who instructed the Crown Solicitor to make the offer prior to the initial planning meeting acted inappropriately;
…
On 3 May 2016, the parties agreed to the terms of the access application which were identical to those at [2] with the exception of Item 7, which instead sought:
Access to all documents referencing in any way GIPA#13, GIPA#17, Zonnevylle, isscosyd@bigpond.com, issco, from:
1. Documents / correspondence between (Dickenson) & (Johnson and/or Verteouris)
2. Documents / correspondence between (King) & (Johnson and/or Verteouris)
3. Documents / correspondence between (Wiggins) & (Johnson and/or Verteouris)
between Jan 2012 & Dec 2015
In the reviewable decision of 5 September 2016, the respondent:
1. granted access to some of the information sought, being information relating to items 1, 2, 5, 6, 9, 11, 12, and 13 of the application, including by creating a new record;
2. decided that the information sought in items 3, 7, 8 and 16 was not held;
3. decided that processing item 4 would require an unreasonable and substantial diversion of resources, and gave the applicant the opportunity to amend the application accordingly;
4. decided, in relation to items 14 and 15, that further search and enquiry was required to determine if the information was held and if it would require an unreasonable and substantial diversion of resources;
5. decided that the information sought in item 10 had been provided to the applicant in earlier access applications; and
6. decided that some of the material located in respect of item 11 of the application was subject to a conclusive presumption of overriding public interest against disclosure because it would be subject to legal professional privilege and decided not to waive that privilege.
The applicant's case can be broadly summarised to be:
1. The Respondent has not conducted adequate or reasonable searches in response to items 3, 7, 8, 9 and 16 of the access application;
2. It would be reasonable for the Respondent to deal with items 4, 14 and 15 despite the diversion of the agency's resources this would require;
3. The Respondent should waive legal professional privilege with respect to documents sought under item 11;
4. Complaints that:
1. The Respondent's decision was made out of time;
2. Officers of the respondent and its representatives have been involved in various alleged acts of misconduct or impropriety in connection with this and other access applications.
Tribunal's jurisdiction and powers
The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s63(3).
The GIPA Act
Section 3(1) of the GIPA Act provides:
3 Object of Act
(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.
Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.
Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: s9(1) of the GIPA Act.
Clause 5 of Schedule 1 to the GIPA Act provides a conclusive presumption of an overriding public interest against disclosure relevant to these proceedings:
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.
Where 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: Saggers v Environment Protection Authority [2014] NSWCATAD 37 at [83].
The Respondent's obligation to search for information in response to an access application is set out in s 53 of the GIPA Act:
53 Searches for information held by agency
(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.
(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.
(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.
(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.
(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Information subject to legal professional privilege
The Applicant sought access to the following documents in his request at Item 11:
Documents / correspondence between GIPA Unit & Chandler referencing GIPA#17 and/or GIPA#13 and/or Zonnevylle
In the reviewable decision, the Respondent identified 44 documents falling within the parameters of Item 11, of which 3 were released and the remaining 41 were withheld on the basis that they were protected by legal professional privilege. The Statement of Anne Harrison explained why each of those documents, which were provided to the Tribunal on a confidential basis pursuant to s107 of the GIPA Act, was subject to legal professional privilege.
It is clear from the documents released to the Applicant that "Chandler" referred to in the request for access application, is "Rosemary Chandler", who is identified in the evidence before the Tribunal as a Principal Solicitor in the Legal Services division of the Respondent.
Legal professional privilege raises a conclusive presumption of an overriding public interest against disclosure, pursuant to s 14(1) and cl. 5 of sch. 1 of the GIPA Act. Clause 5 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.
To the extent that the applicant's complaints with respect to item 11 are made on the basis that the respondent ought to have waived privilege over the withheld documents, that complaint is not within the jurisdiction of the Tribunal.
The principle of legal professional privilege as it applies in the context of applications under the GIPA Act is well established. The weight of authority is that legal professional privilege under the GIPA Act refers to the concept as defined in s 118 of the Evidence Act 1995: Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 at [61]. Section 118 provides:
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that
adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a
lawyer; or
(b) a confidential communication made between 2 or more lawyers
acting for the client; or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;
for the dominant purpose of the lawyer, or one or more of the lawyers,
providing legal advice to the client."
Where an applicant asserts that searches for information conducted in response to an application have not been reasonable, Smith v Pittwater Council [2016] NSWCATAD 67, Camilleri v Commissioner of Police [2012] NSWADT 5 and other previous decisions of the Tribunal and its predecessor including Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 ("Shepherd") provide that the Tribunal is to approach the question as follows:
1. The tribunal is to first ask whether there are reasonable grounds to believe that the requested information exists and is information of the agency.
2. If the answer to question 1 is "yes", the Tribunal must then ask itself whether the efforts made by the agency to locate the information have been reasonable in the circumstances of the case.
The applicant bears the onus of demonstrating that there are reasonable grounds for believing that further information falling within the scope of the access request exists that has not been supplied: Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]. This requires the applicant to put some credible material or submission before the Tribunal that documents of the requested kind exist. The requirement will not be satisfied by an assertion of non-compliance based on a general distrust of the agency in question: Smith at [68], Camilleri at [13]; Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195; Hula v Commissioner of Police (NSW) [2013] NSWADT 153 at [32].
The Respondent bears the onus of satisfying the Tribunal that the searches conducted by the Respondent were reasonable in the circumstances. In determining whether reasonable searches have been conducted, relevant considerations include "the clarity of the request, the way the agency's record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant": Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30].
Section 60 of the GIPA Act provides the circumstances under which an Agency can refuse to deal with an access application, in whole or in part:
60 Decision to refuse to deal with application
(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):
(a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources,
(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,
(b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989 ,
(c) the applicant has failed to pay an advance deposit that is payable in connection with the application,
Note : See section 70.
(d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order.
(2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided.
(3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.
(4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.
(5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal.
(6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.
The considerations identified as relevant to the assessment of whether fulfilling an access application requires both an unreasonable and substantial diversion of resources include those referred to by O'Connor DCJ in Cianfrano v Premier's Department [2006] NSWADT 137 at [62], but as noted in Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130 at [28] ("Colefax No 2"), really depend on the facts and evidence of a particular case.
While the Tribunal is not bound by the doctrine of precedent, that is, it is not formally bound to follow earlier decisions, the Tribunal should exercise caution in re-opening prior, considered rulings of an earlier Tribunal. As noted in Bevege v Commissioner of Police, NSW Police Force [2014] NSWCATAD 22 at [21]:
21 The threshold question that arises before considering any further these contentions is whether the present Tribunal should revisit the prior considered rulings. Counsel for the Administering Minister acknowledged the importance of different panels of a Division of the Tribunal being seen to deal consistently with the same or like questions. He acknowledged that the view might be taken that it would not be appropriate to revisit the previous, considered rulings.
22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level…
23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case.
In the circumstances, the findings in Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47 should not be disturbed in these proceedings.
The applicant's submissions with respect to legal professional privilege included questioning whether:
1. there is a legitimate client lawyer privilege where Chandler is an employee of the DFS;
2. the DFS can give legal advice to itself;
3. Chandler could be "independent" as employee of the same agency, and whether Chandler's section billed the GIPA unit for her services;
4. there an established "client" and "lawyer" within the meaning of s118 of the Evidence Act 1995.
The Applicant also included in his submissions statements about the role of the Tribunal in determining whether something fell within the meaning of s118 of the Evidence Act, including:
The Tribunal has the obligation & jurisdiction to ensure that "legal advice" is within law (i.e. does not breach an Act, statutory law, etc)
The Tribunal does not have an obligation, or jurisdiction, to determine whether particular legal advice was "within law", only to determine whether legal professional privilege is properly claimed by deciding whether relevant documents are confidential documents or communications prepared for the "dominant purpose" of a lawyer providing legal advice to the respondent.
According to the Respondent's evidence, of the 41 documents initially withheld, 4 have since been reconsidered and released to the applicant, being documents 8, 15, 34 and 41. Each document is described in the Statement of Anne Harrison of 15 September 2016 and the schedule to that statement.
The 37 remaining withheld documents contain either:
1. Communications between the respondent and the Crown Solicitor, made for the dominant purpose of providing legal advice to the respondent, or communications between officers of the respondent forwarding or discussing such communications with the Crown Solicitor (documents 1-7, 9, 10, 13, 14, 16-33 and 35-40); and
2. Communications between a legal officer of the respondent and another officer of the respondent in respect of advice as to the processing of an access application made by the applicant (documents 11-12).
The documents in the first category are self-evidently subject to legal professional privilege, on the basis that they reveal confidential communications between the respondent and its lawyer, the Crown Solicitor, which were made for the dominant purpose of giving legal advice within the meaning of s118 of the Evidence Act 1995.
The second category of documents (documents 11 and 12) reveal a confidential communication made by an "in-house" lawyer, being an officer of the respondent. In cases where privilege is claimed over documents created by a lawyer employed "in house", the case law requires that the lawyer have a degree of independence in respect of the advice given: Seven Network Ltd v News Ltd [2005] FCA 142.
Whilst the applicant has questioned the independence of Ms Chandler, he has not provided any evidentiary basis for questioning her independence, other than questioning whether her section "billed" for their services. The Respondent relies on the evidence as to independence contained in the Statement of Anne Harrison. The Applicant did not question Ms Harrison on her evidence except to confirm that she had started working for the Respondent on 20 May 2016, and had no personal recollection of actions taken prior to that date with respect to the access application. Her evidence as to the independence of Ms Chandler, and the basis for claiming legal professional privilege over documents 11 and 12 is therefore accepted by the Tribunal.
Having reviewed the evidence, I accept the Respondent's submissions entirely with respect to the claims for legal professional privilege over the withheld documents produced in answer to the request at Item 11 of the access application.