Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FlyBlue Management Pty Ltd v NSW Crown Lands Department [2021] NSWCATAD 322 Hearing dates: 25 October 2021 Date of orders: 2 November 2021 Decision date: 02 November 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: T Simon, Principal Member Decision: The Tribunal affirms the respondent's decision of 24 September 2020 to refuse access to documents subject to a claim of legal professional privilege in relation to the documents identified as Documents 37-43 and 45-46. Catchwords: ADMINISTRATIVE LAW- freedom of information- government information public access-public interest considerations- Government Information (Public Access) Act 2009 (NSW) Legislation Cited: Administrative Decisions Review Act (NSW) 1997 Civil and Administrative Tribunal Act 2013 Evidence Act (NSW) 1995 Government Information (Public Access) Act 2009 Cases Cited: Archer Capital 4A Pty Ltd v Sage Group plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384 Colefax v Department of Education and Communities [2013] NSWADT 75 FlyBlue Management Pty Limited v NSW Crown Lands Department [2021] NSWCATAD 226 Jackson v University of New South Wales [2019] NSWCATAD 224 Mann v Carnell (1999) 201 CLR 1 Saggers v Environment Protection Authority [2014] NSWCATAD 37 Transport for NSW v Robinson [2018] NSWCATAP 123 Category: Principal judgment Parties: Flyblue Management Pty Ltd (applicant) NSW Crown Lands Department (respondent) Representation: Applicant (self-represented) Crown Solicitor (respondent) Also heard: Information Commissioner (refer s 104(1), Government Information (Public Access) Act 2009). File Number(s): 2021/116519 Publication restriction: In accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013, the publication, other than to the NSW Crown Lands Department: 1. The contents of the folder marked "Confidential documents relied upon by the Respondent" received in evidence by the Tribunal on 26 October 2021 is prohibited. 2. Any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 26 October 2011, including all recordings, whether written, electronic or aural of that hearing is prohibited. Reasons for Decsion 1. On 26 April 2021, the applicant, FlyBlue Management Pty Ltd made an application for administrative review of a number of decisions made by the respondent, NSW Crown Lands Department under the Government Information (Public Access) Act 2009 (the GIPA Act). 2. The matter came before the Tribunal to review two decisions: 1. the decision that no information is held beyond that which has been identified as a result of both initial, and subsequent, searches by the respondent: ss 58(l)(b) and 80(e) of the GIPA Act; and 2. the decision to refuse access to 11 documents that are subject to a claim of legal professional privilege in reliance on s 14(1) and cl 5(1) of Sch 1 the GIPA Act. Those documents are numbered 37-43 and 45-46. 1. On 25 October 2021, the respondent informed the Tribunal that while preparing for the matter it had become aware of a large number of documents that were potentially responsive to the applicant's access application that had not previously been decided. At the hearing, the respondent explained that they had not yet had an opportunity to examine the material and make a decision in relation to providing the documents to the applicant. The matter was remitted for reconsideration pursuant to s 65 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and orders and directions have been made separately in regard to that part of the matter. 2. At the hearing, both parties consented to proceeding with the hearing in relation to the decision to refuse access to the 11 documents on the basis of a claim of legal professionsl privilege. The matter involved evidence and submissions of both a confidential and non-confidential nature. Evidence was heard and submissions made in open hearing and confidential evidence was presented and submissions made on behalf of the respondent in closed hearing. Background 1. On 4 May 2020, the applicant made an application to the respondent for information in relation to the following: "third-party, internal and inter-departmental correspondence and communications with respect to Katoomba Airfield, 178-180 Grand Canyon Road, Medlow Bath, NSW, Lot 550 DP751627, and the proposed long-term lease from 1 May 2019 until 1 May 2020.Particular reference is made to any correspondence that references the Call for Expressions of Interest process, EOI submissions received, the evaluation process, current Licence No RI 592134 and all correspondence and communication with respect to the community consultation proposed and undertaken, and any and all correspondence that relates to the current licensees Derek and Floyd Larsen and/or FlyBlue Management Pty Ltd." 1. That access application was given the reference number 20-1186. The applicant sought review of the decision and the application was out of time in relation to that and other decisions. Relevantly, in FlyBlue Management Pty Limited v NSW Crown Lands Department [2021] NSWCATAD 226, the Tribunal granted an extension of time for the applicant to seek review of the decision. Jurisdiction 1. I am satisfied that the respondent's decision to refuse access to information in response to the applicant's access application is a decision which is reviewable by the Tribunal pursuant to s80(d) of the GIPA Act. Further, I am satisfied that the Tribunal has jurisdiction to conduct this review pursuant to s 100 of the GIPA Act, read with ss 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and s 9 of the ADR Act. The respondent bears the burden of establishing that its decision to refuse access is justified: s 105(1) of the GIPA Act. Material before the Tribunal 1. The respondent relied on the following material: 1. An affidavit of Timothy Deverell affirmed on 27 September 2021. 2. A confidential bundle of documents, containing the 11 documents that are subject to the claim of legal professional privilege. 3. A written outline of submissions received by the Tribunal on 27 February 2021 and oral submissions made in both the open and confidential hearing. 1. The applicant relied on written submissions provided to the Tribunal on 11 October 2021 and further oral submissions made at the hearing. Consideration 1. Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 2. 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)). 3. Section 14(1) of the GIPA Act requires that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Sch 1 to the GIPA Act. Relevantly, Clause 5(1) of Sch 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. 1. The clause refers to legal professional privilege and uses the phrase "client legal privilege", that phrase is used in the Evidence Act 1995 (NSW) (Evidence Act). There remains an unresolved issue as to the appropriate test for privilege – that is s 122 of the Evidence Act or the common law position set out in Mann v Carnell (1999) 201 CLR 1. In Transport for NSW v Robinson [2018] NSWCATAP 123 at [43], the issue was raised before the Appeal Panel and the Appeal Panel determined in that case that it was not necessary to decide the issue 2. The respondent has addressed the question of privilege by reference to the provisions of the Evidence Act. Such an approach is consistent with Colefax v Department of Education and Communities [2013] NSWADT 75, at [26] and Saggers v Environment Protection Authority [2014] NSWCATAD 37, at [26]. 3. I am satisfied that in this case the application of common law principles would not produce a different result in this matter and have considered the matter according to the test in the Evidence Act. 4. Section 118 of the Evidence Act deals with privilege in the context of the provision of legal advice and litigation and relevantly 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. for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client." 1. Section 117 of the Evidence Act contains the following relevant definitions: 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, … 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 an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. … 1. In Jackson v University of New South Wales [2019] NSWCATAD 224, the Tribunal provided the following summary of the position where the client is a government agency and the lawyer is employed by that agency: 105. 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 out-side this professional relationship the information is not privileged. 106. Even where a client-lawyer professional relationship is found to exist, this does not mean that every communication between the lawyer (including the employed legal practitioner) and the client (including a government agency) is thereby privileged. It is only those communications or documents that are confidential and made or prepared for the 'dominant purpose' of the lawyer (in his or her professional capacity) providing legal (professional) advice to the client, or for the dominant purpose of the client being provided with professional legal services relating to litigation. 1. The expression "dominant purpose" was considered in Archer Capital 4A Pty Ltd v Sage Group plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384 at [11], Wigney J stated: A dominant purpose is a reference to "the ruling, prevailing, or most influential purpose": Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416. It is a purpose that predominates over other purposes; the prevailing or paramount purpose: AWB Ltd v Cole (2006) 152 FCR 382 (AWB) at [105]-[106]. The purpose for which a document is brought into existence is a question of fact that must be determined objectively, however evidence of the subjective purpose will be relevant and often decisive: Esso at [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. 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 (Pratt) at [35]. 1. In his affidavit affirmed 27 September 2021. Mr Deverell explains the privileged nature of the documents and the process of provision of legal advice to the business unit of Crown Lands. He explains that the respondent has a Governance and Legal Division that provides legal advice and services to the Department. Further, he states that when legal advice is given by that Division, it is usually provided in written form, which is prominently marked as being "privileged and confidential" and/or "Sensitive: Legal". Mr Deverell also explains that in certain circumstances, it may be necessary for the respondent to engage an external legal service provider, such as the Crown Solicitor. 2. I find that documents 37 to 43 and 45 to 46 are subject to privilege, within the meaning of cl 5(1) of Sch 1 of the GIPA Act. The communications are between various lawyers and members of Crown Lands who I am satisfied are 'clients' within the definition in the Evidence Act. On their face, the documents appear to be prepared for the dominant purpose of the lawyers providing legal advice to members of Crown Lands and the parties to the written correspondence. The headings to the documents, being "privileged and confidential" and/or "Sensitive: Legal" indicate that the parties to the written advice understood that these were confidential communications. 3. Disclosure of documents 37 to 43 and 45 to 46 to the applicants would reveal the matters that the legal advice was required to address. In my view, such disclosure would be "privileged from production" for the purposes of cl 5(1) of sch 5 to the GIPA Act. There is no suggestion that the privilege has been waived. It follows that the claim based on legal professional privilege has been made out and there is a conclusive presumption of an overriding public interest against disclosure of the information on those pages. 4. In light of the above matters, I find that the respondent made the correct and preferable decision when it refused access to the 11 documents on the basis that they were subject to an overriding public interest against disclosure, as privileged information. ORDERS 1. The Tribunal affirms the respondent's decision of 24 September 2020 to refuse access to documents subject to a claim of legal professional privilege in relation to the documents identified as Documents 37-43 and 45-46. ********** 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: 02 November 2021