CGEA Transport Asia Pacific Pty Ltd -v- Director General, Department of Transport [2000] NSWADT 128

CITATION: CGEA Transport Asia Pacific Pty Ltd -v- Director General, Department of Transport [2000] NSWADT 128 DIVISION: General Division APPLICANT CGEA Transport Asia Pacific Pty Ltd PARTIES: RESPONDENT Director General, Department of Transport FILE NUMBER: 003231 HEARING DATES: SUBMISSIONS CLOSED: 08/14/2000 DATE OF DECISION: 09/13/2000

BEFORE: O'Connor K - DCJ (President) APPLICATION: access to documents - Freedom of Information Act - access to documents MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 CASES CITED: Daykin -v- SAS Trustee Corporation [2000] NSWADT 51 Mann v Carnell [1999] HCA 66 Re Colonial Mutual Life Assurance Society and Department of Resources and Energy (1987) 6 AAR 80 APPLICANT REPRESENTATION: A K Phelps, solicitor RESPONDENT G Riley, solicitor ORDERS: Decision under review affirmed.

1 The applicant is a transport company. It runs a public bus service. In 1999 it took steps with a view to acquiring another company that ran a bus service, North and Western Coaches Pty Limited (N & W). N & W was instead acquired by the State Transit Authority (STA). 2 These proceedings result from an application made by the applicant under the Freedom of Information Act 1989 to the Department of Transport for its documents relating to these events. Access was granted to many of the documents sought. The application for review seeks review of a decision to refuse access affecting one document. That document dated 6 December 1999 takes the form of a combined fax cover sheet and first page of a two page letter to the Department from the firm, Andersen Legal, acting for the STA. 3 The applicant made its FOI request to the Department through its solicitors, Piper Alderman Lawyers, by letter dated 11 February 2000. 4 To provide context it is helpful to set out the documents sought in the original application: '1. Communications between the Department of Transport (DOT) and the State Transit Authority (STA) concerning the sale by Butt Investments Pty Limited of its shares in North & Western Coaches Pty Limited [N & W]. 2. Communications between the DOT and Butt Investments Pty Limited concerning the acquisition by the STA of the shares held by Butt Investments Pty Limited in [N & W]. 3. Communications between the DOT and Butt Investments Pty Limited concerning the proposed sale by Butt Investments Pty Limited of its shares in [N & W] to [the applicant] or CGEA Transport NSW Pty Ltd. 4. Communications between the DOT and [N & W] since 1 January 1996, concerning School Student Transport Scheme (SSTS) payments. 5. Any report to or communication with the Minister for Transport since 1 January 1998 concerning [N & W], SSTS payments to North & Western Coaches Pty Limited, [the applicant], CGEA Transport Pty Ltd or the sale or acquisition of [N & W]. 6. Any report to the New South Wales Cabinet with regard to the matters in Clause 5.' 5 The Department's original decision is dated 19 April 2000, a decision confirmed on internal review on 7 June 2000. 6 The Department granted access to all the information sought with some exceptions. These exceptions divided into three groups: (i) those documents which the applicant advised subsequent to the request that it did not continue to seek; (ii) copies of correspondence between the North and Western Bus Company and complainants held by the Department, for which exempt status was claimed; and (iii) the single documents already mentioned. 7 The applicant filed this application for review on 6 July 2000. At a case conference held on 24 July 2000 the parties agreed to the Tribunal adopting the course of resolving the matter on the papers without hearing (as to which see Administrative Decisions Tribunal Act 1997, s 76). 8 The document in issue has been tendered in confidence. The Department has filed written submissions in support of its claim on 7 August 2000, with the applicant filing submissions in reply on 14 August 2000. 9 In its internal review decision and in submissions to the Tribunal, the Department relied on two grounds of exemption: legal professional privilege and documents affecting business affairs. Legal Professional Privilege Exemption 10 The legal professional privilege exemption is set out in cl 10(1) of Schedule 1 to the Act, as follows: '10 Documents subject to legal professional privilege (1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.' 11 The document for which the exemption is claimed is one that passed between the solicitors for N & W and the STA. It is a document in the possession of the Department. 12 The document in issue has been generated in a client-lawyer relationship. The question then is whether legal professional privilege attaches to the document and can be relied upon by the Department. 13 The modern test for legal professional privilege is contained in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67. In Daykin -v- SAS Trustee Corporation [2000] NSWADT 51 Judicial Member Smith at [36] summarised the present law as follows: 'The High Court has now in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 rejected the opinion that there is a "derivative" application of the Evidence Act to pre-trial processes, but has restated the common law so as to prefer the opinion given by Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677: "a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection."' 14 The difficulty that the present application presents is that the Department has invoked the exemption in a situation where it is not the client, but a third party, the STA, is. The applicant objects to this course of action in that there is no evidence as to whether the STA wishes to invoke the privilege. It is clear that the privilege is the client's to assert: for example, Mann v Carnell [1999] HCA 66. 15 The agency holding a document to which access is sought must, according to s 10, ask 'if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege'. It will be common place for the agency receiving a request for access to a document to which this claim might attach also to be the client. But cases will also arise (as here) where in the course of its exercise of regulatory responsibilities an agency will be in possession of a document where the client for the purposes of a claim of privilege is a third party. 16 No authority has been cited to the Tribunal bearing directly on the responsibilities of an agency in that situation. 17 Some guidance can be found from the decision of the Commonwealth Administrative Appeals Tribunal in Re Colonial Mutual Life Assurance Society and Department of Resources and Energy (1987) 6 AAR 80 where Jenkinson J emphasised that in the FOI context the existence or otherwise of the ability to claim to the privilege is to be assessed by reference to the circumstances of the document's creation. 18 In this case the Department has not put any evidence forward as to the wishes of the STA in relation to whether it would invoke or not invoke the privilege. I do not consider it necessary for an agency to take this step. An agency to which a FOI request is made is entitled to make a judgment based on the contents of the document in its possession as to whether it is a document of the kind in relation to which legal professional privilege might properly be asserted. It is not, I consider, essential for it to contact the third party client on the issue; though that might often occur as a matter of prudence. The position in this regard is to be contrasted with those exemptions where there is a 'reverse FOI procedure' requiring contact with the third party: see ss 30-33. 19 While the New South Wales exemption differs a little in its formulation from the Commonwealth formulation (Commonwealth Freedom of Information Act 1982, s 42(1)), their thrust is, I consider, similar; and the decision in Re Colonial Mutual Society is helpful. 20 The New South Wales exemption requires the agency assessing the request to ask whether the document 'would be' privileged from production in legal proceedings. It is enough, I consider, to ask whether the privilege could properly attach. It is not necessary to ask whether the third party client would be inclined to invoke or waive the privilege were the context to which the privilege is addressed to arise - pending or current legal proceedings. That decision is one that should be left to be made at that time. An interpretation should not be given to the FOI Act which forces that decision to be taken prematurely. 21 Accordingly, I do not agree with the submissions for the applicant, to the effect that the Department is not entitled to rely on the legal professional exemption because the document in issue was not generated in a lawyer-client relationship where it was a client. Nor do I agree that it is obliged to seek the views of the client whose privilege it is. 22 I have scrutinised the exempt document, and am satisfied from its terms that it was generated in a lawyer-client relationship between Anderson Legal and the STA. The exemption was properly relied upon by the Department. Business Affairs Exemption 23 Clause 7 of Schedule 1 of the FOI Act confers an exemption as follows: 'Documents affecting business affairs (1) A document is an exempt document: (a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and (ii) could reasonably be expected to destroy or diminish the commercial value of the information, or (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. (2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.' 24 In its submissions the Department directed the Tribunal's attention to the contents of the second and third paragraphs of the document in issue. These paragraphs, it was submitted, go to the business and commercial affairs of N & W and the STA. 25 The Department went on to state the applicant is a competitor of N & W and has been in negotiation for the purchase of its business. The Department also said that there is a prospect of legal proceedings between the applicant and the other bus company and the STA over the circumstances of the acquisition. The provision of the information in a setting where there is some prospect of legal proceedings would, the Department submits, be likely to be reasonably adverse to the interests of those two organisations. 26 In reply the applicant states, understandably, that in the absence of access to the document in issue it is at a disadvantage. 27 The applicant says that what little it knows of the document reveals that the letter is a request from solicitors acting for the STA for information from the Department. The applicant submits that as the document does not of itself disclose Departmental information, not is there any evidence that the evidence that the request discloses any information (of a type which may have an unreasonable adverse effect) of either the STA or Andersen Legal. The applicant submits that there is insufficient evidence put forward by the Department to allow any such finding or inference. 28 In its submissions the applicant goes on to set out its position in relation to its relationship with the events that have given rise to its application. I will not reiterate that material here. It is sufficient to say that it states that it believed it had an agreement giving it exclusivity in relation to the future acquisition of the assets of N & W, and at a time when it expected the acquisition to proceed it had been sold to a third party. 29 The process of making a decision on the papers is not suited to a situation where there are contests as to factual matters. The business affairs exemption involves the need to resolve a number of issues of fact. I am not in a position to make any formal findings on the elements of the business affairs exemption relevant to this case. 30 Apart from the document in issue, I do not have sufficient evidence before me to form any concluded view on whether the business affairs exemption can properly be applied to this exemption. Scrutiny of the document in issue in isolation from evidence as to its context does not enable me to reach any firm conclusions. Consequently, the Department has not discharged its onus in relation to this exemption: as to onus, see s 61 of the FOI Act. 31 The result therefore is that the Department has made out its reliance on the legal professional privilege exemption and its decision is affirmed. It has not made out its reliance on the business affairs exemption. 32 Finally I note that under s 25 an agency's decision whether to refuse in the case where an exemption applies remains a discretionary one. No submissions have been made as to whether the document should nonetheless be released despite its exempt status (the 'public interest override'). Accordingly, I have not considered that question. Order 33 Decision under review affirmed.