Jackson v University of New South Wales [2019] NSWCATAD 224

Read the decision here: Jackson v University of New South Wales [2019] NSWCATAD 224   

Summary

This review decision primarily concerns the claim to legal professional privilege (LPP) by the University of New South Wales (respondent) over 269 email chains of communications, which was information sought by Mr Jackson (applicant) under the Government Information (Public Access) Act 2009 (GIPA Act).  The University claimed the conclusive presumption of an overriding public interest consideration against disclosure of the information under clause 5 of Schedule 1 (legal professional privilege) over the communications between legal advisors and staff between November 2014 and 20 February 2018. The University also claimed that some information was excluded information within the meaning of clause 6 of Schedule 1 (excluded information); and there was an overriding public interest consideration against disclosure for some information pursuant to clauses 1(e), 1(f), 1(g), 3(a), 3(b) and 3(f) of the Table to section 14. To assist the Tribunal’s review, the University prepared three separate Schedules of documents that listed the email chains and other information which was refused; and during proceedings, was required to prepare a fourth Schedule to revise Schedule 2 in that it contained additional information in regard to redacted drafts of correspondence sent to Mr Jackson. The Tribunal affirmed the University’s decision with respect to LPP for most of the email chains of communication, but also found that not all emails were privileged where the communication concerned administrative decisions or advice.

What you need to know

The decision affirms the legal principles for LPP and the Tribunal’s approach to determining claims to LPP under clause 5 of Schedule 1 with respect to the Evidence Act 1995 and the common law.  

The Tribunal considered LPP with respect to email correspondence, and (at [123]-[124]), was not satisfied that LPP existed for an entire email chain where an email was correspondence for administrative purposes or to give administrative advice and direction.  Those communications were not for the dominant purpose of giving legal advice and were not advice given in the legal advisor’s professional capacity.

The decision highlights for agencies, the importance of carefully dating, identifying and itemising each document contained in Schedules where the decision maker is required to consider a large volume of information. SM Higgins commented (at [88]-[89]) that navigating information may be particularly time consuming for the decision maker, where it is not organised in a chronological or subject matter order, and in the case of the email chains, duplications were scattered throughout the schedule folders.

Legislative background

GIPA Act

Section 80(d) review of decision to refuse to provide access to information

Clause 5 of Schedule 1 Legal Professional Privilege

Clause 6 of Schedule 1 Excluded information

Schedule 2 Excluded information of particular agencies

Schedule 4 definition of ‘excluded information’

Section 14 public interest considerations against disclosure clause 1(e), 1(f), 1(g), 3(a), 3(b) and 3(f)

Review requirements and jurisdiction

Section 100 Administrative review of decision by NCAT

Factual background

In February 2018, the University received an access application under the GIPA Act from Mr Jackson, who had been a PHD student between 2011 and 2013. The access request set out 37 requests for information concerning “all correspondence and documents of meetings“ from, or to, 32 individually named academic and other staff members of the University, the Student Conduct and Appeals office and the ARC Legal Services. The Applicant also sought access to copies of his medical and counselling records held by the University. The University made three decisions – the first decision in March 2018 granted access to counselling records; the second decision in April 2019 decided to provide access to some information, decided that some of the information was not held, and that the remaining information was subject to LPP. The University also refused to deal with the application in part because dealing with the application in its entirety would require an unreasonable and substantial diversion of resources. Mr Jackson applied for review of the second decision by the Information Commissioner, and the review report recommended the University make a new decision with respect to information withheld on the basis of LPP, clauses 3(a), 3(b) and 3(f). In its third decision, the University reviewed its review of the second decision, but only in regard to clauses 3(a) and 3(b); and affirmed its earlier decision. Mr Jackson applied for review by the Tribunal to determine whether the claims of LPP and the other exemptions under Schedule 1 of the GIPA Act amount to the concealment of an abuse of power, or otherwise invalid use of the exemptions they have claimed.

Tribunal findings

The Tribunal (at [93]) noted the University’s submission that the correspondence between the applicant and the University formed the basis on which legal advice was alleged to have been sought or provided, and it was also privileged. The Tribunal (at [94]-[106]) outlined the legal principles for LPP, citing Daniels Corp International Pty Limited v Australian Competition and Consumer Commissioner (2002) 213 CLR 543 at [9]:

“It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.”

The Tribunal (at [95]), also endorsed the Tribunal’s finding in Colefax v Department of Education and Communities [2013] NSWADT 72 but SM Higgins stated that the analysis in Colefax that the express words of “client legal privilege” in clause 5 of Schedule 1 were those used in the Evidence Act 1995:

“… does not mean that the provisions of the Evidence Act are a code and the common law legal professional privilege principles and are of no application. In this regard, the courts and Tribunals have continued to have regard to the common law in construing the meaning and operation of words and terms not defined in the Evidence Act.”

The University submitted (at [103]) that it is not necessary that the legal officers employed by a government agency be ‘independent’, so long as they satisfy the section 117(1) definition of ‘lawyer’ (a person admitted to Australian legal profession); and that all the elements of sections 118 and 119 of the Evidence Act are satisfied.

The Tribunal observed (at [105] and [106]) that:

“Ultimately it is a question of fact as to whether a professional relationship exists between the client employer and the in-house lawyer and whether the in-house lawyer was consulted in his or her professional capacity: see and Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 , at [35] to [41]. Where advice is requested or given outside this professional relationship, the information is not privileged.”

The Tribunal also discussed (at [107]-[110]) the requirement for the dominant purpose for which a communication is brought into existence between a client and their independent legal advisor, citing Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098; (2013) 306 ALR 384. SM Higgins (at [110]) cited AWB Ltd v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 at [107], per Young J:

“The authorities accept that an 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: see Pratt Holdings Pty Ltd v Cmr of Taxation[2004] FCAFC 122; (2004) 136 FCR 357 at [35] per Finn J. I would add that where the document is immediately communicated by its author to several other persons, including the author’s legal adviser, by a circular email (which is the case here), it is also important to ask what was the dominant purpose of that email communication.” 

The Tribunal (at [111]-[114]) considered authority that the concept of legal advice is fairly broad and not confined to telling the client the law — it includes what should prudently and sensibly be done in the relevant legal context; citing General Manager, WorkCover Authority of NSW v Law Society (NSW) [2006] NSWCA 84 at [77].

The Tribunal (at [114]) also considered that LPP extends to information/advice that is of a non-legal character where that information/non-legal advice is connected to the giving of legal advice or pending litigation. SM Higgins cited Cmr Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 which provided that client legal professional privilege also extends to the information in copies of unprivileged documents where the copy was brought into existence solely for use in obtaining legal advice or for use in apprehended litigation.  

In considering the University’s claim of LPP pursuant to clause 5 of Schedule 1, the Tribunal (at [120]-[131]):

• accepted that there existed a client lawyer relationship between the University and its General Counsel, and that the communications in the email chains identified by Schedule 3 were made under an express or implied obligation not to disclose their contents 
• determined that LPP did not attach to all of the email chains in Schedule 3 where the email communication was not made for the dominant purpose of the University being provided with legal advice by its General Counsel, or for the dominant purpose of providing professional services in regard to litigation. In this regard, emails which were consultations for administrative purposes, were not subject to privilege, as the legal officers were not consulted in their professional capacity, or provided advice in that capacity.

The Tribunal (at [129]), noted that for those email chains not privileged, this did not mean that a disclosure of this information may nevertheless contain, in part, information that is privileged or that a disclosure of the information (in part or on whole) could reasonably be expected to give rise to one or more of the public interest considerations against disclosure in the Table to section 14 of the GIPA Act. The public interest test would be applied to this information.

Tribunal outcome

The Tribunal affirmed the University’s decision in regard to deletions in the list of documents in Schedule 1; deletions in some documents in Schedule 2; and deletions for most of the documents (email chains) listed in Schedule 3; but set aside the decision in regard to the remaining documents in Schedule 3 and remitted this for reconsideration. The Tribunal also set aside the decision with respect to deletions in documents listed in Schedule 2 and substituted a decision that the Applicant be granted access to that information.