CITATION: Cianfrano v Director General, Attorney General's Department [2007] NSWADT 8 DIVISION: General Division APPLICANT PARTIES: Robert Cianfrano RESPONDENT Director General, Attorney General's Department FILE NUMBER: 053411, 063055 HEARING DATES: 27/06/2006 SUBMISSIONS CLOSED: 21 August 2006 DATE OF DECISION: 9 January 2007 BEFORE: Montgomery S - Judicial Member CATCHWORDS: access to documents - adequacy of search - access to documents - business affairs - access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 Attorney General (NT) v Kearney (1985) 158 CLR 500 AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 Cainfrano v Director General, Premier's Department [2006] NSWADT 137 Cianfrano v Department of Commerce [2005] NSWADT 297 Cianfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195 Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Daniels Corp International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49 DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 1191 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Humane Society International Inc. -v- National Parks & Wildlife Service & ors [2000] NSWADT 133 CASES CITED: Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 Ingot Capital Investments Pty. Ltd. v Macquarie Equity Capital Markets Ltd. [2006] NSWSC 530 Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADTAP 40 McGuirk v University of New South Wales [2006] NSWADT 84 Neary v State Rail Authority [1999] NSW ADT 107 Raethel v Director-General, Department of Education and Training [1999] NSWADT 108 Saggers v Director General, Attorney General's Department (GD) [2006] NSWADTAP 11 Saggers v Director General, Attorney General's Department [2005] NSWADT 193 Stewart and Department of Transport (1993) 1 QAR 227 Trade Practices Commission v Sterling (1979) 36 FLR 244 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Vance v Air Marshall McCormack in his capacity as Chief of Air Force & Anor [2004] ACTSC 78 Waterford v Commonwealth (1987) 163 CLR 54 Young v Wicks (1986) 79 ALR 448 APPLICANT In person REPRESENTATION: RESPONDENT A Johnson, Solicitor ORDERS: The matter is to be set down for further directions Thursday, 8 February 2007 at 2p.m. REASONS FOR DECISION 1 These applications relate to Mr Cianfrano's requests to the Director General of the NSW Attorney General's Department ("the Department") seeking access to documents under the Freedom of Information Act 1989 ("the FOI Act"). The two matters were heard together and the parties made submissions common to both applications. 2 These applications refer to documents relating to two earlier applications brought by Mr Cianfrano for review of determinations by the Premier's Department. On 3 August 2004 and 24 February 2005, Mr Cianfrano made requests to the Premier's Department under the FOI Act. Mr Cianfrano ultimately sought external review of the Premier's Department's determinations in this Tribunal. Those applications were identified as matters numbered 053154 and 053155. The Crown Solicitor ("CSO") was instructed to act for the Premier's Department in relation to both applications. 3 Mr Cianfrano withdrew his application in matter 053155. Matter number 053154 was the subject of conflict of interest allegations. In his decision recorded as Cianfrano v Director General, Premier's Department [2006] NSWADT 137 the Tribunal's President noted at paragraphs [16]-[19] "16 At the hearing held 24 August 2005 the applicant had raised concerns as to the independence of the agency's evidence. According to Mr Hanna the files relevant to the request were all held by the Office of the Co-ordinator General (OCG), Premier's Department, whose Executive Director is Mr John Dermody. Mr Dermody's advice as to the scale of the request had been relied upon by Mr Hanna. 17 Mr Dermody was seen by the applicant as having a conflict of interest. Earlier in his career Mr Dermody had worked for the Sydney Market Authority, and was General Manager between 1986 and 1991. More importantly in the eyes of the applicant, he had later as principal of the business, John Dermody and Associates, consultants, been significantly involved in advising the Government in respect of the restructure of the Sydney Markets and the ultimate sale to Sydney Markets Limited. 18 The applicant noted that the advice given at that time by John Dermody and Associates had been the target of other FOI requests made by him or his colleague, Mr Saggers. The applicant raised the possibility, therefore, that the agency's reaction to his request might be affected, or might be seen to be affected, by partiality on the part of Mr Dermody. 19 While not accepting that there was a conflict, the agency sought an adjournment, which was granted, to enable it to put on evidence that avoided that criticism. Consequently it engaged a former officer with relevant experience who had held senior positions in the administrative services area of the agency, Mr Quinnell, now a consultant, to assess the request and provide evidence to the Tribunal." Factual background 053411 4 Mr Cianfrano's request by letter dated 29 September 2005 was in the following terms: "The applicant is seeking and requesting documents in to the following subject matter, Cianfrano v Director General NSW Premier's Department ADT General ADT Division 053154-155 The documents requested are specifically defined and are to include the following, The applicant seeks all working and internal administrative documents to all instructions to and from CSO and in particular to Ms Jillian Mahony, Ms Richardson and Ms Anina Johnson Solicitors for the Crown Solicitors Office in the ADT General Division 053154-155 matters. The internal administrative documents are to include all instructions to and from correspondence etc, in relation to the carriage, to Ms Jillian Mahony, Ms Richardson and Ms Anina Johnson and any other Solicitor acting under instructions for the CSO in relation to, the Cianfrano v Premier's Department matter before the ADT. The documents are to include the following, 1. All phone call records, 2. All file notes, 3. All diary notes, 4. All faxes transmission records, 5. All memos records, 6. All email records, 7. And all bits of paper etc; The internal administrative documents are to include the commencement of Ms Richardson's written submissions and all internal working documents seeking an adjournment to Cianfrano v Premier's Department up and till the respondent's submissions to the ADT. The internal administrative documents are also to include Ms Jillian Mahony CSO internal working administrative correspondence and all documents to Mr Cianfrano, all instructions internal working administrative correspondence to and from and the Department in relation to the directions hearing seeking an adjournment of the 27 September 2005. This FOI application seeks in particular in all documents to Ms Mahony CSO and the statement presented to the ADT. And all those documents on what basis that were declared by the Premiers Department as to be inadvertently collected to demonstrate their failure to adhere to the letter of the law. The applicant also seeks the internal administrative working documents in relation to all instructions issued by the Premier's Department and received by the CSO that led to the telephone directions hearing and the application to the adjournment of the 27 September 2005. The documents are also to include all internal administrative working documents and all documents in relationship to the carriage this matter Cianfrano v Premiers Department plus the subsequent adjournments. The documents are to include any other agents and or agencies etc, involved with the subsequent adjournments in relation to this matter. 5 In its original determination the Department identified 163 documents as falling within scope of the application. The Department granted access to some documents, but refused access to others in whole or in part. It prepared a schedule that indicated the documents and the exemption that were said to be applicable. The Department relied on the exemptions in clauses 7(1)(b), 10(1) and 11(b) of Schedule 1 to the FOI Act and s. 32(2). Mr Cianfrano subsequently applied for an internal review of this decision, which affirmed the original decision, except for the fact that access to one document was refused on the basis of Clauses 7(1)(c) and 10(1), rather than s. 32(2). 6 Mr Cianfrano subsequently lodged an application for external review with the Tribunal. 7 Ms Elissa Stathis, the Department's Freedom of Information Officer provided a statement in which she identified the documents that are said to fall within the scope of the application. She categorised them as follows: A. Legal Professional Privilege 24 The nature of the documents which are legally professionally privileged fall into the various categories and are listed according to these categories below. References to document numbers in Matter No 053155 are followed by a "B". Communications between the Crown Solicitor's Office and the Premier's Department 25 The following documents involve communications to and from the staff of the Crown Solicitor's Office and the Premier's Department. These communications were made for the purpose of responding to the application brought by Mr Cianfrano. Documents 10,16,17,24,26,29,34,36,37,38,40,43,44,47,51,53,57, 58, 59, 64, 67, 69, 70, 78, 8B, 17B, 18B, 21B, 22B, 26B, 29B, 34B, 35B, 36B, 37B, 40B, 43B, 45B, 52B, 53B, 54B, 64B, 68B, 69B, 71B, 79B and 85B. Communications between the Crown Solicitor's Office and Counsel 26 The following documents contain communications between staff of the Crown Solicitor's Office and Counsel. These communications were made so that counsel could advise and appear in the ADT proceedings Documents 4,11,21,25,30,31,33,42,3B,9B,19B,24B,25B, 30B, 31B, 33B, 44B, 46B and 47B. File notes of conversations etc 27 The following documents consist of file notes recording conversations between officers of the CSO and either counsel, clients or witnesses or reflect the thought processes of CSO employees. Documents 5,7,9, 12,22,23,27,32,39,45,46,49,50,54,55,56,60,61, 65, 66, 68, 4B, 6B, 7B, 10B, 20B, 23B, 28B, 32B, 38B, 41B, 42B, 48B, 49B, 50B, 51B, 56B, 57B, 72B, 73B, 78B and 82B. Draft Court documents 28 The following documents are draft court documents, which, to the best of my knowledge, were not filed with the ADT. Documents 1, 3 and 1B. Research undertaken by the Crown Solicitor's Office 29 The following documents consist of copies of various documents made for the purpose of conducting research. Disclosing the substance of the research undertaken by the CSO would reveal issues and cases which were considered and which might not have been included in counsel's final submissions. Documents 58B, 59B, 60B, 74B, 75B, 76B and 77B. Communications within the Crown Solicitor's Office 30 Document 41 is the only document falling into this category. B. Documents affecting business affairs 31 Document 77 is the only document falling into this category. 063055 8 Mr Cianfrano's request by letter dated 29 September 2005 was in the following terms: The applicant is seeking and requesting documents into the following subject matter, Cianfrano v Director General NSW Premier's Department ADT General ADT Division 053154. The documents requested are specifically defined and are to include the following, The applicant seeks all and internal administrative documents of the Attorney General's Department, to all working instructions to and from Crown Solicitors Office (CSO) and in particular to any Solicitor and or legal representative and or Barristers etc, in relation to the ADT General Division file 053154 on the 22 November 2005. The internal working administrative documents are to include all instructions to and from correspondence etc, in relation to the carriage etc, to and from Crown Solicitors Office and or any other agent and or agency etc, and in particular to any and all Solicitors and or any other legal representative and or Barristers etc, in relation to the ADT General Division 053154 proceedings. The documents are to include the following, 1. All phone call records, 2. All file notes, 3. All diary notes, 4. All faxes transmission records, 5. All memos records, 6. All email records, 7. And all bits of paper etc; The internal administrative working documents are to include the commencement and finalization of the ADT General Division 053154 proceedings. The documents are to include all documents of the Crown Solicitors Office (CSO) and in particular to any Solicitor and or legal senior, counsel etc, in relation to the ADT General Division 053154 proceedings on the 22 November 2005. The internal administrative documents are also to include the Minister's and or the Director General and or, Deputy Director General and all Executive Directors and all officers subordinate of the Attorney General's Department and any other agency and or agent etc. The internal documents are also to include documents of the Crown Solicitors. Office (CSO) and in particular to any Solicitor and or legal representative etc, and any other agent and Agency etc, in relation to the ADT General Division 053154 proceedings. 9 In its original determination the Department identified 140 documents as falling within scope of the application. The Department granted access to some documents, but refused access to others in whole or in part. It prepared a schedule that indicated the documents and the exemption that were said to be applicable. Mr Cianfrano subsequently applied for an internal review of this decision. Access was granted to some additional documents and the remainder of the original decision affirmed. 10 At a planning meeting of 14 March 2006, I indicated my view that this application should be read as referring only to documents not caught by the application in matter No. 053411. It is therefore limited to documents created after 30 September 2005. Those documents are identified in a schedule prepared by the Department that indicated the documents and the exemption that were said to be applicable as documents 79-140. The remaining 78 documents were considered in the application in matter No. 053411. 11 Ms Stathis identified the documents that are said to fall within the scope of the application and She categorised them as follows: "A. Legal Professional Privilege 10 The nature of the documents which are legally professionally privileged fall into the various categories and are listed according to these categories below. Communications between the Crown Solicitor's Office and the Premier's Department 11 The following documents involve communications to and from the staff of the Crown Solicitor's Office and the Premier's Department. These communications were made for the purpose of responding to the application brought by Mr Cianfrano. Documents 79, 91,97, 102, 103. Communications between the Crown Solicitor's Office and Counsel 12 The following documents contain communications between staff of the Crown Solicitor's Office and Counsel. These communications were made so that counsel could advise and appear in the ADT proceedings Documents 81,82,83,84,85,86,92,94,98,106,108,109,110,112,113, 115,116,119 File notes of conversations etc 13 The following documents consist of file notes recording conversations between officers of the CSO and either counsel, clients or witnesses or reflect the thought processes of CSO employees. Documents 80,87,89,90,93,95,107,114,117,118,120,124 Draft Court documents The following documents are draft court documents, which, to the best of my knowledge, were not filed with the ADT. Documents 111, 115, 122 Communications within the Crown Solicitor's Office 15 Document 96 is the only document that falls into this category. B. Documents affecting business affairs 16 Documents 121, and 137 17 These documents consist of the invoices sent from the Crown Solicitor to the Premier's Department. The Crown Solicitor provides legal services to the State of New South Wales. It competes with the private legal profession to perform work for the Government of New South Wales in the area of FOI. If the hourly rates charged by the Crown Solicitor in this matter were to become known to the Crown Solicitor's competitors this would reduce the Crown Solicitor's ability to effectively compete with the private sector. The amount of time spent on the work has also been deleted because this information, when coupled with the total amount billed, would enable the calculation of the hourly rates that the Crown Solicitor charges. C. Documents containing matters the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person. 18 Document 139 is the only document that falls into this category. 19 This document contains the personal contact details of Mr Les Quinnel. The document has been released with this information deleted." Applicable legislation 12 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. The legally enforceable right to be given access to documents held by the Government is subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information. Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. 13 Subsection 25(1) of the FOI Act allows an agency to refuse access to an exempt document in certain circumstances, including where a document is an "exempt" document as defined in the FOI Act. Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and if it appears to the agency that the applicant would wish to be given access to such a copy. Pursuant to section 61 of the FOI Act the agency has the burden of establishing that its determination was justified. 14 Subsection 32 of the FOI Act provides in part: 32 Documents affecting business affairs (1) This section applies to a document that contains: (a) information concerning the trade secrets of any person, or (b) information (other than trade secrets) that has a commercial value to any person, or (c) information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any person. (2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 7 of Schedule 1. 15 Clause 6 of Schedule 1 provides: 16 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 17 Clause 7 of Schedule 1 provides: 7 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. 18 Clause 10 of Schedule 1 to the FOI Act provides: 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. (2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document. 19 Clause 11of Schedule 1 to the FOI Act provides: 11 Documents relating to judicial functions etc A document is an exempt document if it contains matter the disclosure of which would disclose: (a) matter relating to the judicial functions of a court or tribunal, or (b) matter prepared for the purposes of proceedings (including any transcript of the proceedings) that are being heard or are to be heard before a court or tribunal, or (c) matter prepared by or on behalf of a court or tribunal (including any order or judgment made or given by the court or tribunal) in relation to proceedings that are being heard or have been heard before the court or tribunal. The Department's case 20 The Department relies on the evidence of Ms Stathis. Ms Stathis attended the hearing and was subjected to cross-examination. She provided statements in relation to the nature of the documents that have been identified as falling within the applications. She also provided confidential annexures in which more thorough details were provided in relation to the documents. The documents that are said to be exempt were also provided to the Tribunal. Clause 6 - personal affairs 21 Document 139 contains the personal contact details of Mr Les Quinnell. The document has been released with those contact details deleted. The Department points to a finding by Judicial Member Robinson in Humane Society International Inc. -v- National Parks & Wildlife Service & ors [2000] NSWADT 133 that the home address of a person, even where that person is a statutory licence holder concerns their personal affairs. The Department says that there is no public interest in making Mr Quinnell's personal contact details available to Mr Cianfrano. Clause 7 - business affairs 22 Document 77 is a memo of fees submitted by counsel briefed by the CSO to advise and appear for the Premier's Department. Documents 121 and 137 are the invoices sent from the CSO to the Premier's Department, deleted so as to conceal the CSO's hourly rates. 23 The Department refers to various decisions that have considered the meaning of "business affairs". In Young v Wicks (1986) 79 ALR 448 at 453 Beaumont J characterised the notion of "business affairs" as referring to a commercial operation. In Raethel v Director-General, Department of Education and Training [1999] NSWADT 108 O'Connor P held at [47] that in the context of a school, business affairs included matters relating to income and expenditure, employment relationships and fundraising. The Queensland Information Commissioner has construed the expression as meaning matters concerning the business undertakings of the person, which is to be carried on in an organised way for the purpose of obtaining profits or gains: Re Stewart and Department of Transport (1993) 1 OAR 227. 24 The expression "financial affairs" has been held to include expenditure on professional services, the negotiation of fee arrangements with external providers, hourly rates and the actual amounts paid, as well as reports concerning information about the money management, including credit arrangements, of an agency: Neary v State Rail Authority [1999] NSWADT 107. In regard to the question of whether disclosure of information would have an unreasonable impact on an agency's business for the purposes of clause 7(1)(c)(ii) the Tribunal's President stated at [35]: 35 An objective view must be brought to bear on an agency's claim that release will have an adverse impact on its financial affairs. The Tribunal should approach issue from the viewpoint of a reasonable administrator. The administrator should have reasonable grounds for his or her perception. There must be more than a mere risk. While the key word used in the relevant provision - `expect' - carries a firmer connotation than words such as `anticipates', it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. All relevant factors, including public interest considerations, should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances. 25 The President concluded at [40]-[41]: "40 As to the information in relation to expenditure on services provided by the Crown Solicitor's Office, release of information as the total amounts paid does not, I consider, place at risk in any meaningful way the nature of the arrangements that might exist between the agency and that Office. The only information shown in the invoices which might, arguably, fall within the protection of the exemption is the reference (found in hand-writing on two of the invoices) showing a multiple of a number (the hours of service rendered) and an hourly rate. 41 That information does, I consider, bear on the contractual relationship between the agency and the Office. It gives an insight into what rate the Office charges for a certain class of work. That information, if known to others with whom the agency deals in relation to the provision of legal services, might give an advantage to those third parties in negotiation of rates. Consequently, applying the tests referred to, I consider that the hand-written references to the hours and hourly rates should be exempted from disclosure." 26 The Department submits that the same approach should be adopted in this matter because the release of the hourly rates charged by the CSO might give an advantage to third parties in negotiation of rates. Accordingly, documents 121 and 137, being the balance of the CSO's invoices are properly exempt. 27 In relation to document 77, the Department submits that there is no doubt that the memos of barristers' fees relate to the professional and financial affairs of the barristers concerned. The Department relies on the evidence of Ms Stathis that barristers compete for work amongst their peers. They also charge different fees for different clients. Release of these documents would allow other barristers to undercut those counsel who were briefed by the Crown Solicitor in this matter. It would also allow other private parties to know the amount charged by the counsel in this matter, which might assist those private parties to negotiate a more favourable brief fee when they next came to brief counsel. Privileged Documents in issue 28 Ms Stathis's evidence is that the CSO was retained by the Premier's Department to provide representation in the defence of matters numbered 053154 and 053155. The Department asserts that the relationship of the CSO and the Premier's Department is plainly a professional relationship between lawyer and client. It contends that the documents over which exemption is claimed under clause 10 were created in the course of that relationship and for the purpose of providing representation in the proceedings. The documents were kept confidential. 29 The Department contends that the law in regard to the application of Legal professional privilege is found in the Court of Appeal decision in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84. McColl JA with whom Handley and Hodgson JJA agreed, held that the tests set down by the High Court in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; as amplified in Daniels Corp International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49 apply to a claim for exemption under clause 10. McColl JA said at [67]: "Legal professional privilege is a rule of substantive law which enables a person to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person 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: Daniels Corporation International Ply Ltd and Anor v Australian Competition and Consumer Commission (at [9]) per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Esso Australia Resources Ltd v Commissioner of Taxation ." 30 McColl JA also considered the rationale behind legal professional privilege saying at [68]: "The rationale of legal professional privilege is "that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline": Grant v Downs (at 685); Attorney-General (NT) v Maurice (at 487); see also Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 per Mason J (at 74), per Deane J (at 114), per Dawson J (at 128)." 31 The Department argues that there is no doubt that the privilege attaches to the advice of government lawyers, such as the Crown Solicitor, who are providing independent legal advice: Waterford v Commonwealth (1987) 163 CLR 54; Workcover v Law Society at [69] -[71]. Legal professional privilege will only apply if the legal practitioner received or created the communication in that capacity for the purpose of the client obtaining professional legal advice: Workcover v Law Society at [72]. 32 The Department further argues that the independence of the State Crown Solicitors was recognised by Mason and Wilson JJ in Attorney General (NT) v Kearney (1985) 158 CLR 500 at 67. 33 The Department points to the decision of the Tribunal's President in Saggers v Director General, Attorney General's Department [2005] NSWADT 193 at [21], where he accepted the statement of Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 as usefully defining the categories of circumstances in which legal professional privilege can arise: 21 A well-known statement describing the various types of documents that can be the subject of a claim for legal professional privilege is one made by Lockhart J in the case of Trade Practices Commission v Sterling (1979) 36 FLR 244, 245-6. His Honour described the categories as follows: '(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. (b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. (c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. (d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. (e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. (f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. (g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.' 34 The Department submits that privilege covers a range of documents, including copies of documents made for a privileged purpose. In Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 McHugh J said at 550: "The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client's affairs, or as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant." 35 The Court of Appeal in Workcover v Law Society acknowledged at [73] that "Once it is established that the legal practitioner was acting in the requisite capacity, a confidential communication will attract privilege even if it contains extraneous matter as long as it was prepared for the dominant purpose of giving legal advice." 36 The Court of Appeal cited with approval the comments of Allsop J in DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 1191. Allsop J had referred approvingly to Taylor LJ's statement in Balabel v Air India [1988] Ch 317 (at 330), and then said (at [45]): What legal advice is, however, goes beyond formal advice as to the law. This recognition does not see the privilege extend to pure commercial advice. In any given circumstance, however, it may be impossible to disentangle the lawyer's views of the legal framework from other reasons that all go to make up the "advice as to what should prudently and sensibly be done in the relevant legal framework." 37 However, the Court of Appeal noted that Allsop J also observed (at [31]) that: " the privilege … will not be allowed to be undermined by an overly narrow or technical approach to questions involved, such as the identification of the relevant advice in question. It does not, however, provide a foundation for extending the protection beyond its proper bounds." 38 At [86], the Court of Appeal stated: 86 In my view the Appeal Panel recognised and applied the legal principles concerning legal advice privilege to which I have referred in determining WorkCover's privilege exemption claim. The Appeal Panel (at [22]) tested the question whether the disputed documents attracted legal professional privilege by applying the dominant purpose test. It acknowledged (at [30]) that as long as "the overall environment is one of legal advice the courts will allow the privilege to cover broader advice which is of a non-legal character, and will protect documents of an administrative character connected to the giving of the legal advice." 39 The Appeal Panel had said in Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADTAP 40 at [30]: "If the overall environment is one of legal advice the courts will allow the privilege to cover broader advice which is of a non-legal character, and will protect documents of an administrative character connected to the giving of the legal advice. As to protection of documents of an administrative character (logs of telephone calls and the like), see per McHugh J in Propend Finance at 550; see also Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246 per Lockhart J" 40 As noted above, legal professional privilege is claimed for the following categories of documents: A. Communications between the CSO and the Premier's Department B. Communications between the CSO and Counsel and C. File notes of conversations between officers of the CSO and either counsel, clients or witnesses or which reflect the thought processes of employees. D. Draft court documents E. Copies of documents made in the course of researching issues connected with the proceedings F. Communications between officers in the CSO 41 The Department submits that the documents in category A fall within category (a) of Trade Practices Commissioner v Sterling. The documents in category B fall within category (c) of Trade Practices Commissioner v Sterling. The documents in categories C and F fall within category (d) of Trade Practices Commissioner v Sterling. The documents in category D fall within categories (a) and (b) of Trade Practices Commissioner v Sterling. The documents in category E are copies of documents made for a privileged purpose of the kind referred to by McHugh J at 550 in Propend Finance. The Department submits that all these documents are privileged and exempt under clause 10 of Schedule 1 of the FOI Act. Improper purpose 42 The Department concedes that legal professional privilege will not apply where advice has been sought for the purpose of being guided or helped in a crime or fraud: Attorney General of the Northern Territory v Kearney (1985) 158 CLR 500 per Gibbs CJ at 511. However, it disputes Mr Cianfrano's assertion that the statements of evidence filed before the Tribunal are not correct, that all documents have not been retrieved and that this is consistent with improper conduct and improper facts presented to the exemptions for withholding documents. Any allegations of impropriety on the part of the Department are strenuously denied. 43 It argues that Mr Cianfrano's submissions that the way in which his FOI applications have been processed is improper and therefore defeats any claim for privilege made over the documents must fail. It says that the actions of the Department in processing the FOI application cannot taint the legal advice obtained by the Premier's Department with the brush of impropriety. Allegations of impropriety would only be effective to defeat a claim for privilege under clause 10 if the Premier's Department sought the advice of the CSO in order to assist it to carry out an improper act. The Department says that there is no evidence to suggest that this was the case. 44 The Department points to comments by Gaudron J in Propend Finance at 545 where she stated: "Communications made in furtherance of future wrongdoing fall outside legal professional privilege, although there is no particularly precise statement as to the nature of the wrongdoing that produces that result. However, legal professional privilege clearly extends to the situation in which a person seeks advice with respect to past misdeeds." 45 The Department says that Mr Cianfrano must show some evidence to show improper conduct of the kind referred to by the Tribunal's President in Saggers at [36]: "The malfeasance or misconduct must be of a gross kind, not one that may be no more than an administrative oversight in the course of a process which the Act clearly entitled the Government to undertake. The principal documents completing the transaction are available, and have been provided to Mr Saggers and Mr Cianfrano – the agreement and the deed of release. The case law does not stand for the proposition, asserted by Mr Cianfrano, that a failure to remain within the boundaries of statutory power (mere ultra vires, or 'narrow' ultra vires as counsel for the Department called it) is enough to give rise to the loss of legal professional privilege. Much more is required." 46 In McGuirk v University of New South Wales [2006] NSWADT 84 at [36] I said that I considered that it was for the applicant to demonstrate a prima facie case of the furtherance of an illegal object. Mere allegation is not enough. Allegations of such a serious kind ought to be made out to the standard described by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363. 47 The Department submits that Mr Cianfrano has made a serious allegation without any evidence to support it. He failed to withdraw the allegation even though the Department had put him on notice of the need to provide substantial evidence in support of any such allegation. The Department submits that Mr Cianfrano's allegations do not come close to discharging his onus of proving, to the requisite standard, a prima facie case of impropriety on the part of the Premier's Department. Sufficiency of search 48 The Department submits that internal review determination in relation to the documents referred to in the schedule to that determination must implicitly include a statement that the agency did not hold any other documents falling within the scope of the application. The Department submits the Tribunal cannot review a determination where notification is given under section 28(1)(b) of the FOI Act that an agency does not hold a document. It submits that although this view is not consistent with the authorities in the Tribunal, there are persuasive reasons why previous cases considering this issue should not be followed. 49 Nevertheless, the Department submits that Mr Cianfrano has a detailed schedule of documents which should allow him to identify any deficiencies yet he has not put forward any evidence to demonstrate any deficiencies in the Department's searches for documents. The Department submits that the Tribunal should decline to order that it is to prepare an affidavit. Costs 50 The Department submits that the Tribunal has the power to award costs against parties to the proceedings, pursuant to section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). The Court of Appeal in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 considered what might amount to "special circumstances" justifying a costs order under section 88. Santow JA (with whom Mason P and Brownie AJA agreed) said at [55] "unreasonable conduct that is out of the ordinary and conduct which is grossly unreasonable can attract exercise of the Tribunal's power under s. 88 to award costs." 51 His Honour went on to find at [60]: "[I]t suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration." 52 The Department relies on the decision in Cianfrano v Department of Commerce [2005] NSWADT 297 where the Tribunal's President took account of the level and the nature of the FOI activity of Mr Cianfrano. The President stated at [33]: "33 Some account should, it seems to me, be taken of the level of activity of the FOI applicant. The present applicant has made, clearly, quite voluminous and wide-ranging requests addressed to a number of agencies seeking to dig out the entire documentary history of the Flemington Markets sale. That is his right. Complex government activities may well attract complex and relatively voluminous access requests. But the FOI system depends for its effective operation on a measure of common sense and co-operation both on the part of agencies and applicants. This is particularly so where an applicant is engaged in the kind of complex process I have described. I made a similar observation in another recent decision relating to the applicant : Cianfrano v Director General, NSW Department of Commerce [2005] NSWADT 283 at [16]. The kind of request that has given rise to these proceedings is one that the applicant is entitled to make, but it is an oppressive request in many ways. I agree with the agency that it will inevitably involve the gathering up and analysis of many documents the applicant must already have. The claims that the applicant makes that his request is one to do with his 'personal affairs' was in my view quite specious, and that would have been apparent to an applicant of the applicant's sophistication and experience in FOI matters. The same applies to the public interest claim. In my view a request on a request would rarely, if ever, have any connection with the public interest." 53 The Department says that the same approach should be adopted in this matter. It sought to distinguish the Appeal Panel decision in Saggers v Director General, Attorney General's Department (GD) [2006] NSWADTAP 11 where the applicant successfully resisted a costs order. The Appeal Panel held at [38] " 38 Although Mr Saggers has been unsuccessful in this appeal, it cannot be said that the appeal had no real prospect of success. Nor do any of the circumstances described by the Attorney General's Department, either alone or in combination, amount to "special circumstances warranting an award of costs." We agree that Mr Saggers and Mr Cianfrano are familiar with the ADT's FOI jurisdiction. However, they are not lawyers and cannot be expected to articulate grounds of appeal in a way which a lawyer could. They have not made claims which have no tenable basis, nor have they put the Attorney General's Department to unnecessary expense. Apart from the ground of appeal based on Government policy, which was a very minor aspect of the appeal, Mr Saggers has done his best to put forward arguable grounds of appeal. The mere expression of intention on the part of the Attorney General's Department to apply for a costs order does not mean that such an order should be made in circumstances where Mr Saggers' appeal was unsuccessful. 54 The Department submits that this matter can be distinguished from the decision in Saggers which involved only allegations of errors of law. It submits the Appeal Panel's decision in Saggers was handed down before the Court of Appeal's decision in Cripps and that a different result may follow from applying the Cripps test. 55 Mr Cianfrano was put on notice of the Department's intention to seek its costs. The Department says that Mr Cianfrano should be ordered to pay its costs of defending these proceedings because his conduct, as a repeat player in the FOI arena, takes his application for external review outside of the ordinary kind of application and warrants an award of costs in the respondent's favour. It argues that Mr Cianfrano should have understood that his application had no merit. He is well aware of the basis on which exemptions are properly claimed under clause 10 of Schedule 1 to the FOI Act. At least five of his matters have involved claims of privilege made over documents created by the CSO. The Department says that the application itself is vexatious and has put the Department to considerable expense. It is a classic example of an abuse of the FOI process. Mr Cianfrano's case 56 Mr Cianfrano contends that in order to establish legal professional privilege there must be information or other substance that directly impacts on the nature of the arrangement between a legal practitioner and a client. He submits that no solicitor client relationship exists in relation to the documents in dispute. 57 Mr Cianfrano points to the Premier's Memorandum 95-39 dated 12 October, 1995 and titled 'Arrangements For Seeking Legal Advice From The Crown Solicitor's Office'. While Government agencies have greater freedom to avail themselves of legal services provided by private practitioners, Core work is to be undertaken by the CSO. This work includes matters which: (a) have implications for Government beyond an individual Minister's portfolio; (b) involve the constitutional powers and privileges of the State and/or the Commonwealth; (c) raise issues which are fundamental to the responsibilities of Government; or . (d) arise from, or relate to, matters falling within the Attorney General's areas of responsibility. 58 Mr Cianfrano contends that the CSO was engaged to undertake Core Work. The CSO were acting as officers of the Crown and giving expert advice to the Government and this is to be distinguished from the usual client-solicitor relationship. This is akin to advice given by an in-house lawyer given to assist the government in the purely executive function of decision making. This relationship does not attracte privilege. 59 He says that fees billed, with totals of fees billed have been released with references to hours and hourly rates. The invoices show no GST paid to the professional services carried out by the CSO. He argues that the documents show no solicitor client relationship as per the schedule documents. 60 He relies on views expressed by Crispin J in the Supreme Court of the ACT in the matter of Vance v Air Marshall McCormack in his capacity as Chief of Air Force & Anor [2004] ACTSC 78 (2 September 2004) and the subsequent appeal in that matter. He submits that the Department has failed to establish any factual basis on which legal professional privilege could arise, and therefore submits that the documents sought should be provided to him. 61 He further submits that legal professional privilege only applies to solicitor-client relationship and must not be used for an ulterior purpose or for an ultra vires action. He says that the dominant purpose of the documents that the CSO claims are subject to legal professional privilege was to prevent him from exercising his rights under the law. He argues that this is contrary to the exemptions and claimed by the Department and its submissions. 62 Mr Cianfrano contends that the decision in Ingot Capital Investments Pty. Ltd. v Macquarie Equity Capital Markets Ltd. [2006] NSWSC 530 is authority for the proposition that litigation privilege does not apply to proceedings before the Tribunal. In Ingot Justice Bergin considered that proceedings in the Administrative Appeals Tribunal ("the AAT") were 'non adversarial' proceedings and consequently, communications prepared for the purpose of providing professional legal services in relation to the proceedings were not privileged under the 'litigation privilege' limb of legal professional privilege. 63 Mr Cianfrano contends that this decision restricts the availability of litigation privilege in proceedings before this Tribunal. Accordingly, he says that legal professional privilege does not apply to the documents as asserted. 64 Mr Cianfrano submits that all exemptions must be interpreted strictly because they are exemptions to remedial legislation. He contends that because of the provisions of the FOI Act which mandate the exercise of discretion in favour of disclosure, the documents must be disclosed. 65 He argues that the business affairs exemption cannot apply to a relationship between the CSO and the Premier's Department because the CSO was undertaking core work. This is not an area in which the CSO is in competition with private legal provides and therefore the charge out rates would not reveal information that has any commercial value. He says that the views expressed in Neary v State Rail Authority can be distinguished for this reason. 66 Mr Cianfrano further submits that the Department has failed to demonstrate a proper diligent sufficiency search for all documents in connection to the application. He says that not all documents have been discovered and retrieved in relation to his FOI requests. 67 Mr Cianfrano submits that even if the documents are exempt documents, they should be released to him in any event because of the public interest in the release of the documents. Findings 68 I agree with the Department's submissions in relation to its assertion as to the exemption pursuant to clauses 6 and 7 of Schedule 1 to the FOI Act. I am satisfied that the deleted parts of Document 139 contain personal contact details. In the circumstances of this matter I am satisfied that this is information concerning the personal affairs of Mr Les Quinnell. In my view the Department's decision to release the document with personal information deleted was the correct decision. 69 I am satisfied that Documents 77, 121 and 137 satisfy the Clause 7 exemption. For the reasons advanced by the Department I am satisfied that they contain information that has a commercial value, and their release could reasonably be expected to destroy or diminish the commercial value of the information. The nature of the work undertaken by the Department is pursuant to a solicitor-client relationship. I do not agree with Mr Cianfrano's argument that the Department was carrying out core work and therefore the costings are of no commercial value. I adopt the views expressed by the President in Neary v State Rail Authority referred to above. 70 Where a challenge is mounted to a claim of legal professional privilege on the basis that the communication was made in furtherance of an improper purpose, the onus lies on the person making that claim to show 'reasonable grounds'. If the purpose of a decision has to be ascertained by inference, a presumption of regularity operates. An improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power: Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 per Gaudron J at [23]. 71 I agree with the Department that Mr Cianfrano has not discharged the onus on him in relation to his allegation of impropriety or improper conduct. 72 With respect to the assertion that the search undertaken by the Department was inadequate, I note that in Cianfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195 the Tribunal confirmed that it does have jurisdiction to conduct an "adequacy of search" review in certain circumstances. The Department of Commerce appealed to the Appeal Panel against the Cianfrano decision. The Appeal Panel has referred the following question of law to the Supreme Court: "Is a notification under s 28(1)(b) of the Freedom Information Act 1989, that an agency does not hold a document, a determination which the Administrative Decisions Tribunal has jurisdiction to review?" 73 I have assumed, for the purpose of these proceedings, that the Tribunal does have jurisdiction to review such a decision. In any event I am satisfied that Mr Cianfrano had sufficient information on the basis of which he should have been able to identify any deficiencies in the Department's searches for documents. He has not done so. In the circumstances of this matter I do not require the Department to undertake any further search or to provide any further evidence in relation to the search it has undertaken. 74 The issue of the asserted exemption pursuant to clause 10 of Schedule 1 to the FOI Act is more complex. Of significance is the decision by Bergin J in Ingot. I will consider that issue in detail below. The Department's claim that documents are exempt pursuant to clause 10 of schedule 1 to the FOI Act will fail if litigation privilege does not apply in this Tribunal. If litigation privilege applies in the Tribunal then it will be necessary to consider the application of the categories identified in Trade Practices Commissioner v Sterling. Given that these categories are well established I will consider them briefly. 75 The Department submits that the documents in category A (communications between the CSO and the Premier's Department) fall within category (a) of Trade Practices Commissioner v Sterling. 76 I do not agree with Mr Cianfrano's assertion that there was no solicitor-client relationship between the CSO and the Premier's Department. I am satisfied that the requisite relationship existed and in the circumstances any confidential communication between them in that capacity falls within the exemption. 77 I am also satisfied that the documents in category B (communications between the CSO and Counsel) fall within category (c) of Trade Practices Commissioner v Sterling. They are communications between the legal advisers of the Premier's Department with a view to the Premier's Department obtaining legal advice or assistance. 78 The Department submits that the documents in category C (file notes of conversations between officers of the CSO and either counsel, clients or witnesses or which reflect the thought processes of employees) and those in category F (communications between officers in the CSO) fall within category (d) of Trade Practices Commissioner v Sterling. I am satisfied that these documents were made by the legal adviser of the Premier's Department and relate to information sought by the CSO to enable it to advise the Premier's Department or to conduct litigation on its behalf. 79 The Department submits that the documents in category D (draft court documents) fall within categories (a) and (b) of Trade Practices Commissioner v Sterling. I am satisfied that these are either solicitor-client communications or draft solicitor-client communications. 80 The Department submits that the documents in category E (copies of documents made in the course of researching issues connected with the proceedings) are copies of documents made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. I am satisfied that this is the case. Litigation Privilege 81 Mr Cianfrano contends that the decision in Ingot is authority for the proposition that litigation privilege does not apply to proceedings before the Tribunal. He says that this decision restricts the availability of litigation privilege in proceedings before this Tribunal. Accordingly, he says that litigation privilege does not apply to the documents over which it is asserted. 82 Ingot concerned a dispute over privilege in relation to documents containing expert advice provided for the purposes of a hearing in the AAT. Bergin J considered whether the claim for privilege could properly be made under sections 118 and 119 of the Evidence Act 1995. That Act applies to "all proceedings in a Federal Court" or a "New South Wales Court" being a person or body that was required to apply the laws of evidence. As the AAT was not required to apply the rules of evidence, Bergin J found that it was not a court and the statutory privilege did not apply. 83 Bergin J then went on to consider whether common law litigation privilege could apply. The question was whether proceedings in the AAT amounted to "litigation". Bergin J referred at length to the decision of Young J in AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571. Young J had summarised the authorities as follows: "155 The traditional rationale for the litigation limb of legal professional privilege was explained by Stephen, Mason and Murphy JJ in Grant v Downs at 685: 'The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision. None the less there are powerful considerations which suggest that the privilege should be confined within strict limits.' 156 In Carter at 160-161, McHugh J said that explanations of the rationale that have been put forward in terms of the proper functioning of the legal system or the perfect administration of justice take too little account of the fact that the privilege protects communications that seek or give legal advice in cases where no litigation is pending or contemplated. His Honour therefore expressed the rationale for the privilege more broadly: 'Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is 'a practical guarantee of fundamental, constitutional or human rights'. By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality.' ... 157 In Pratt Holdings , Stone J concluded that the High Court's exposition of legal professional privilege in Daniels , Esso and other cases demonstrates that it is supported by a single rationale which applies to both litigation privilege and legal advice privilege: at 381 [85]. Merkel J agreed with this conclusion. However, Stone J added that the existence of a single rationale does not mean that it is no longer necessary to have regard to the different categories of legal advice and litigation privilege. Finn J did not find it necessary to decide whether legal professional privilege should now be recognised as a unified doctrine which, though having two applications (ie advice and litigation), has a single rationale. His Honour regarded this controversy as a well recognised one and observed that, at an appropriate level of abstraction, a common and unifying rationale can be found for both manifestations of the privilege: at 361 [9]. 158 Legal professional privilege must be applied in a manner which is consistent with the policy reasons that justify its existence: see Pratt Holdings at 362 [18] and 367-368 [41]-[42] per Finn J, and 386 [105] per Stone J; and Three Rivers at 650 [35]. But this does not mean that the origins, and the distinctive scope and operation of the second limb of the privilege, are to be ignored. In my view, the authorities establish that the reason why litigation privilege has been recognised as a substantive rule of law and as a fundamental right, is that it operates to secure a fair civil or criminal trial within our adversarial system of justice. The rationale for litigation privilege does not support its extension to a commission of inquiry. 159 AWB also relied upon the broad terms in which legal professional privilege was expressed in the joint judgments in Daniels at 552 [9] and Esso at 64 [35]. In the latter case, Gleeson CJ, Gaudron and Gummow JJ said that the privilege protects the confidentiality of certain communications made in connection with the provision of legal services, including representation in proceedings in a court. AWB also referred to s 119 of the Evidence Act 1995 (Cth) which refers to 'professional legal services relating to an Australian or overseas proceeding'. In my opinion, these matters do not support the extension of litigation privilege to the context of a commission of inquiry. In Daniels and Esso, the High Court was trying to describe the scope of the privilege in a summary way. The description recognises that in appropriate cases the privilege can extend beyond legal advice to include other forms of legal work. It would be wrong to infer from the High Court's summary statement that it was intending to radically enlarge the operation of the rule. And in my view the language used in s 119 does not disclose any intention to extend litigation privilege to the conduct of a commission of inquiry." 84 Young J also noted the decision of Dawson J in Waterford (at 101) where his Honour said: "The concept of litigation for the purpose of the doctrine of legal professional privilege is, I think, wide enough to embrace the proceedings before the Tribunal which were conducted upon adversary lines and contemplated legal representation. Communications for the purpose of giving and receiving legal advice in relation to those proceedings fell, in my view, within the privilege." 85 On this point, Young J concluded at [161]: "161 In my opinion, it is one thing to extend litigation privilege to adversarial proceedings before the Administrative Appeals Tribunal. The Administrative Appeals Tribunal is vested with statutory authority to determine issues with legally binding consequences. A Royal Commission is not in that position. A Commissioner simply carries out investigations, determines the facts and prepares a report and recommendations. A Commission does not finally determine any rights or obligations." 86 Young J concluded that it was unnecessary to extend litigation privilege to legal work undertaken in connection with the inquiry in order to satisfy the rationale for privilege. He stated at [162] and [163]: "162 It must also be recognised that legal advice privilege applies in its full extent to legal work undertaken in connection with the Inquiry. Provided the dominant purpose test is satisfied, legal advice provided in connection with the preparation of evidence for possible use at the Inquiry will attract privilege. In the context of the provision of legal advice and the preparation of evidence for a commission of inquiry, the question must be asked whether any communications, falling within the margin between legal advice privilege which is available, and litigation privilege which historically has not been available, justifies the extension of litigation privilege beyond adversarial court proceedings so as to include a commission of inquiry. The location and retention of witnesses, expert or otherwise, is really an adjunct of adversarial litigation and, in my view, does not warrant such an extension. 163 Given the applicability of legal advice privilege in the context of a commission of inquiry, I am not persuaded that the broad rationale for legal professional privilege justifies the extension of the litigation limb so as to include a commission of inquiry." 87 In Ingot, Bergin J noted that the argument before her turned on the comments of Dawson J in Waterford and Young J's statement in AWB at paragraph 161. Her Honour noted that the decision in Waterford concerned a request under the Freedom of Information Act 1982 (Cth) ("the FOI Act (Cth)) for access to documents. The Department had refused access to those documents and the appellant applied to the AAT for a review of that decision. Prior to the AAT giving its decision in relation to the appellant's application, the appellant sought access to the documents in the Department's possession that related to the processing of his original request. The Department refused access to those documents and the appellant then applied for a review of that decision in the AAT. The Department claimed that the documents were exempt because they would be privileged from production in legal proceedings: section 42(1) of the FOI Act (Cth). 88 Her Honour's discussion of the decision in Waterford was as follows: 29 The AAT held that each of the documents was exempt under s 42(1) and the Full Federal Court (Fisher, Gallop and Neaves JJ) dismissed the appeal. The appeal to the High Court was dismissed (Mason and Wilson JJ, Brennan J; Deane and Dawson JJ dissenting). In the joint judgment of Mason and Wilson JJ, their Honours identified the central question in the appeal as (at 60): … whether it is open to the Commonwealth to claim legal professional privilege in the circumstances of this case, that is to say in respect of documents the subject matter of which is legal advice obtained from within the Government and concerned with proceedings pending in the tribunal. 30 Their Honours said of s 42(1) of the FOI Act (at 64): The plain reading of this provision would suggest that Parliament has acknowledged expressly that legal advice tendered in connexion with the process of administrative decision-making will attract the privilege. Furthermore, the nature of the proceedings on an application for review cannot affect the matter. The relevant question is whether the document to which access is sought is an exempt document. If the privilege attaches, it will have the character from the beginning, regardless of whether or not the decision to refuse access is reviewed. 31 Their Honours also said (at 67): But the point of overriding importance to the appellant's argument focuses on the second category of documents to which the privilege attaches, that is to say, professional communications between a client and his legal adviser in connexion with legal proceedings. It was to this category of documents that much of the appellant's request for access related. If a communication satisfies the description of a document brought into existence for the sole purpose of enabling a confidential professional communication between a client and his legal adviser in connexion with pending or anticipated legal proceedings then in our opinion it follows that it is an exempt document within the meaning of s. 42 of the Act. In such a case it is not to the point that the document may contain advice which relates to matters of policy as well as of law. It is the connexion between the document and legal proceedings that establishes its character and thus attracts the privilege. 32 Dawson J drew the distinction between a situation in which advice was given by an in-house lawyer "in a professional capacity in relation to a professional matter" and that given to assist the government "in the purely executive function of decision making". His Honour held that the former attracted privilege and the latter did not. Dawson J identified the privilege that was in issue in the proceedings as follows (at 95): The legal professional privilege relied upon in this case is that which attaches to communications between a legal adviser and his client for the purpose of giving or receiving legal advice and to documents recording those communications or containing information for the purpose of enabling the advice to be given. 33 At 101 his Honour said: The relevant documents for which privilege was claimed in this case relate, however, not to the decision to refuse access to the document to which access was originally sought and refused, but to the proceedings before the Tribunal in which that refusal was contested. … Thus the communications for which privilege was claimed in this case appear to relate, not to advice given to assist in reaching the decision to refuse access to those documents (a decision which would have been simply in the administration of the Act), but to the proceedings before the Tribunal in which the decision to refuse access was contested. The concept of litigation for the purpose of the doctrine of legal professional privilege is, I think, wide enough to embrace the proceedings before the Tribunal which were conducted upon adversary lines and contemplated legal representation. Communications for the purpose of giving and receiving legal advice in relation to those proceedings fell, in my view, within the privilege. … [I]t is clear enough that in giving legal advice about the proceedings before the Tribunal [the legal advisers] were acting in a professional capacity in relation to a professional matter and enjoyed the relationship of lawyer and client with the respondent. 89 Commenting on the decision in Waterford, Bergin J said at [39] and [40]: 39 It is conceded by the applicant that the AAT proceedings contemplate legal representation. That matter alone is not sufficient to attract litigation privilege. It is a matter that is to be considered with other relevant factors. 40 It is accepted that the AAT has statutory authority to determine issues that are legally binding on parties. There are many bodies that make decisions that are legally binding on individuals, for example the Australian Taxation Office in relation to assessments, licensing authorities in relation to the granting of licenses and local councils in relation to development consents. Once again this criterion alone does not seem to me to be a proper basis upon which litigation privilege should be extended to AAT proceedings, however it is a matter to be taken into account in determining whether litigation privilege extends to the AAT. 90 At [47]-[48] Bergin J noted 47 The respondents did not call any evidence in relation to the manner in which proceedings are conducted in the AAT. The fact that legal representation is contemplated in the AAT does not mean that the proceedings are adversarial. The fact that the legal representatives of the applicants in AAT proceedings may argue for an outcome different to that in the decision under review whilst the decision-maker is represented does not mean that the proceedings are adversarial. It is important to consider the functions and powers of the AAT in determining whether the proceedings are adversarial. 48 In APRA v VBN & Ors [2005] FCA 1868, in an application pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B(1A)(a) and (c) of the Judiciary Act 1903 (Cth), Ryan J reviewed the decision or conduct of the AAT in making an order under s 37(2) of the AAT Act that the decision-maker lodge certain documents, including "legal advice" and "relevant instructions" relating to the "interpretation and application of the law relating to the decision under review". In its reasons for making the order the AAT observed that s 37(3) "expressly abrogates legal professional privilege in relation to documents that must be lodged with the Tribunal under ss 37(1) or 37(2)". 91 Bergin J was lead to the conclusion that proceedings in the AAT were not adversarial. She also noted that section 33(1M) of the AAT Act gave statutory recognition to the fact that the decision maker is to assist the Tribunal. Her Honour was also persuaded by the fact that the AAT stands in the shoes of the decision maker and is able to inform itself in any manner that it deems fit. It can go beyond the submissions put to it by those appearing before it and is able to require the production of documents it regards as relevant to the review of the decision. 92 At [55], her Honour said "55 For all these reasons I am satisfied that the AAT stands outside what Young J referred to in AWB as the "adversarial system of justice" (at [158]). I am satisfied that the AAT proceedings are not "proceedings" within the meaning of that term in the Act nor is there a proper basis upon which the common law litigation privilege should be extended to them. The dictates of fairness are served by the availability of common law advice privilege and litigation privilege does not apply to the administrative processes and proceedings in the AAT." Litigation privilege in this Tribunal 93 In my view there are sound reasons for rejecting the view that Ingot is authority for the proposition that litigation privilege does not apply to proceedings before the Tribunal. The AAT and the ADT share some similarities. The ADT is not bound by the rules of evidence and the Evidence Act 1995 does not apply. Section 55(1) of the ADT Act allows the Tribunal to inform itself on any matter in such manner as it thinks fit. While that provision does not necessarily indicate whether the proceedings are intended to be adversarial or inquisitorial it would at least allow the Tribunal to adopt inquisitorial procedures. It is the tribunal's role to "stand in the shoes of the administrator" when reviewing an FOI application. It has the power to assemble all relevant documents from an agency and assess them in the light of the Act. 94 Nevertheless, the differences between the two tribunals are significant when dealing with the question of privilege. Ingot was not a matter pursuant to FOI legislation. There was no onus of proof in the determination of the claim in the AAT proceedings. That is not the case when the ADT proceedings concern an application for a review of a decision made under the FOI Act. Proceedings before the Tribunal are conducted upon adversary lines and contemplate legal representation. Section 61 of the FOI Act specifically imposes the burden of proof on the agency when defending FOI proceedings. I note that in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Nicholas J observed in relation to proceedings before the Tribunal under the FOI Act: "61 However, the proceedings were adversarial and it was up to the parties to define the issues to be left for the Tribunal's decision." 95 Further, there is no equivalent provision to section 33(1M) of the AAT Act in the ADT Act. The ADT has a much broader jurisdiction than the AAT and in the Retail Leases and Equal Opportunity Divisions regularly deals with matters to which a Government agency is not a party at all. An agency has no positive obligation to help the Tribunal. Instead, it is in the same position as other parties to the proceedings before the Tribunal. 96 Whether proceedings are correctly characterised as adversarial depends on many factors. These include: the overall nature of the proceedings whether the body is administrative in character whether the process is primarily inquisitorial whether the primary decision-maker has a statutory obligation of assistance to the review body whether the decision maker is able to go beyond the parties' submissions (such as by requiring the production of documents and generally informing itself in any manner it deems fit) whether legal representation is contemplated, and whether the body has the capacity to make legally binding determinations. 97 If, on an assessment of these, and any other relevant criteria, the correct conclusion is that the relevant forum is not adversarial, it should be assumed that litigation privilege would not be available. I do not consider that to be the case in FOI proceedings in this Tribunal. On balance I think that the correct view is that these proceedings are correctly characterised as adversarial. It follows in my view, that Ingot is not an authority for the proposition that litigation privilege does not apply to proceedings before the Tribunal. 98 Further, I am satisfied that litigation privilege does apply to the documents over which it is asserted. It follows that each of the exemptions claimed by the Department is correctly asserted. Public Interest Override 99 Until recently there has been considerable debate with respect to the issue of whether the Tribunal has what is commonly referred to as a "public interest override" if it determines that the documents should be classed as exempt documents. The matter has now been resolved by Nicholas J in his recent decision in University of New South Wales v Gerard Michael McGuirk. He stated at paragraphs [102] – [103]: "102 In my opinion s 63 ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it. 103 It follows that with respect to the overriding discretion issue I respectfully disagree with the conclusion expressed in Neary (para 83) that it is not open to applicants for review to seek an order, purportedly in exercise of powers conferred by s 25 FOI Act that a Minister or agency release an otherwise exempt document. In my respectful opinion the following passage from Mangoplah correctly states the position: "85 Consistent with this jurisprudence, absent any special limitation on the Tribunal's review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act – indeed the duty – when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it". 100 The Tribunal's discretion to order access to exempt documents is to be exercised with regard to the material then before it. In light of this decision it is appropriate that the parties have an opportunity to present argument with respect to how the Tribunal's should be exercised. The matter should be set down for further directions in respect of the outstanding matters, on a date suitable to both parties and as arranged by Registry. Costs 101 The Department has sought an order for costs. In the circumstances I do not consider that such an order is warranted. Although Mr Cianfrano has been unsuccessful in this application, it cannot be said that the application had no real prospect of success. The issue of litigation privilege is a significant one and is by no means frivolous. 102 While I agree with the Department's submission that Mr Cianfrano's application with respect to improper purpose was misconceived, it is my view that the appropriate order is that each party should bear its own costs. Order The matter is to be set down for further directions on Thursday, 8 February 2007 at 2p.m. 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.