CITATION: Saggers v Director General, Attorney General's Department [2005] NSWADT 193 DIVISION: General Division APPLICANT PARTIES: Colin Arthur Saggers RESPONDENT Director General, Attorney General's Department FILE NUMBER: 053060 HEARING DATES: 18/07/2005 SUBMISSIONS CLOSED: 18/07/2005 DATE OF DECISION: 16/08/2005 BEFORE: O'Connor K - DCJ (President) APPLICATION: access to documents - legal professional privilege - Freedom of Information Act - access to documents - legal professional privilege MATTER FOR DECISION: Principal Application LEGISLATION CITED : Freedom of Information Act 1989 Sydney Market Authority (Dissolution) Act 1997 Cianfrano v Director-General Premier's Department NSW & anor [2004} NSW ADT 255 CASES CITED: Cianfrano v Director General New South Wales Treasury [2005] NSW ADT 7 Trade Practices Commission v Sterling (1979) 36 FLR 244 Attorney General of the Northern Territory v Kearney (1985) CLR 500 APPLICANT REPRESENTATION: In Person RESPONDENT M Allars, barrister ORDERS: Decision under review is affirmed REASONS FOR DECISION 1 This is another in the series of Freedom of Information cases being pursued in the Tribunal by Mr Saggers, a Paddy's Market trader of long standing, and Mr Cianfrano, a fruit grower. Through a series of applications made under the Freedom of Information Act 1989 (FOI Act), Mr Saggers and Mr Cianfrano have tried to obtain all the documents held across the Government relating to the sale in 2002 of the Sydney Markets site to Sydney Markets Limited (SML). The agencies to which applications have been made include the Treasury, the Department of Premier and Cabinet, the Department of Agriculture and the successor Department to the Department of Public Works – the Department of Commerce. There have also been applications directed to Minister's offices. 2 The administrative history leading up to the sale process has been set out in other decisions of the Tribunal: see, for example, Cianfrano v Director-General, Premier's Department NSW & anor [2004] NSWADT 255 at [22] and ff; and Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 at [7]-[8]. As the Tribunal understands the history, the markets were run until at least 1996 on an essentially co-operative, non-profit basis. From 1997 to 2002, SML operated the Sydney Markets under a lease arrangement. In 2002 the Government sold the site and buildings to SML. 3 Mr Saggers and Mr Cianfrano are very critical of the fact of the sale and the terms of the sale. They are critical of the impact of the sale on traders and suppliers. They have referred now in several cases dealt with by the Tribunal to what they see as the very low price paid for the markets as compared to valuations of the site published in the annual reports relating to the administration of the markets in the early 1990s by the agency then responsible for the markets, the Sydney Markets Authority. They are also critical of one of the components of the sale agreement of 2002. The agreement took into account SML's agreement to discontinue litigation it had commenced against the Government in relation to disputes between SML and the Government. 4 The access application under notice in these proceedings was received 20 December 2004 and directed to the agency which was engaged to provide legal services to some of the agencies involved in the sale process, the Crown Solicitor's Office (CSO). The CSO, as the name indicates, is a legal service operating within the overall framework of the Government. It is a business unit of the Attorney General's Department. The Department has handled this application on behalf of the CSO. It is the respondent in these proceedings. 5 Following consultation with Mr Saggers, he and the Department agreed to the following as the scope of the request: 1. Taxable invoices issued by the Crown Solicitor's Office; 2. The statement of claim issued by Sydney Markets Ltd against the State of NSW; and 3. Documents relating to the practical steps leading to the settlement and filing of a notice of discontinuance, including letters of offer and response, correspondence relating to the notice, the notice itself and any deed of release concerning the settlement. 6 The Department was unable to deal with the request within the 21 days provided by the FOI Act. Among the reasons for the delay was its need to consult SML and liaise with the CSO. The Department kept the applicant informed of the reasons for the delay. On or about 25 January 2005 the applicant raised the issue of whether a deemed refusal of his application had occurred by reason of the failure to respond in time (FOI Act, s 24(2)). There is separate, earlier correspondence (dated 14 January 2005) asking for an internal review based on that assumption. The net result is that the Department appears to have treated itself as having made a determination to refuse all documents on a deemed basis. This conclusion is based on the fact that the Department issued by letter dated 11 February 2005 a set of reasons for decision headed 'Review of Determination', described as a determination under s 34 of the FOI Act (the internal review provision). The Department released 5 documents in full. It released partially 17 documents, claiming that the remainder of the documents was exempt on various grounds; refused the whole of 46 documents, claiming they were exempt on various grounds. 7 In issue as a result of the internal review determination were 63 documents. At hearing the Department altered in some instances the basis for its claim to exemption. The applicant did not press for release of 15 of the documents. The balance that remain in issue is, therefore, 48 documents. In all instances the Department asserted that the material for which exemption was claimed was protected by legal professional privilege. The Department described as 'supplementary' its reliance on other exemptions. (Note that the numbering of Documents used in this decision is that used by the Department at hearing, as distinct from the numbering used in the Department's internal review determination.) 8 The applicant did not dispute the claims for exemption as they related to the documents listed at groups 3 and 10 of the internal review determination. (There were 10 groups, with group 1 being the documents released in full.) The group 3 and group 10 documents have to do with the bills rendered by the CSO. Prior to hearing, there was a substantial release of this material. The covering letter was released in full, the tax invoice was released in full, references to the fee earner, the work performed and the hourly rate were deleted. Where it was an invoice in respect of a disbursement, the hourly rate of counsel, the work performed by counsel and the cost of expert reports were deleted. The group 3 documents are now numbered as 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30. The group 10 documents are now numbered as 60 and 63. 9 The documents that remain in dispute, using the internal review determination groupings and the new numbering, are the following: Group 2: Documents 49 and 51(partly released) Group 4: Documents 61 and 62 (partly released) Group 5: Documents 1 and 2 Group 6: Documents 3, 4, 5, 6, 7, 11, 12, 13, 15 and 16 Group 7: Documents 31, 33 and 58 Group 8: Documents 32, 34, 35, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 50, 52, 53, 54, 55, 56, 57, 59 Group 9: Documents 8, 9, 10, 14 and 17. 10 At hearing the Department amended the basis for its refusal of many of the documents. It now claimed that all the documents are protected by legal professional privilege. It described as 'supplementary' exemptions the claims that it made for protection of the documents on other grounds. 11 As to Documents 31to 59 inclusive it claimed that they were, in addition, protected by cl 13, the confidential material exemption; and made the same claim in relation to Documents 1, 2, 9, 10, 14 and 17. As to the Documents that remain in dispute numbered 14, 18, 20 to 31 inclusive, 33, 58 and 60 to 63 inclusive, it relied on cl 7(1)(b) and (c) (the business affairs exemption). As to Documents 1, 2, 32 and 59, it relied on cl 9 (the internal working documents exemption). The Department tendered two affidavits from an officer of the Department (one open, one confidential) going to the discretionary considerations taken into account in applying these additional categories of exemption to the documents. 12 Mr Saggers' application was the subject of detailed submissions as to the law prepared by his colleague Mr Cianfrano. Legal Professional Privilege 13 If the claim of legal professional privilege is made out in relation to all of the documents in dispute, it is unnecessary to go on to consider the other heads of claim. 14 Clause 10 of Schedule 1 to the 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.' 15 At hearing Mr Saggers sought to introduce further material, which he described as evidence – a thick document entitled Heads of Agreement (between the Government and SML) and a bundle of documents comprising memorandums, notes and other official documents. The Tribunal's understanding is that this material had been acquired through other FOI applications. 16 Mr Saggers saw it as relevant to his present case in that this material tended to support a claim of abuse of public office, which, if established, would bear on whether the claim to legal professional privilege could be sustained and would be relevant to the discretionary considerations found in the other exemptions relied upon. 17 Granting an application by Mr Saggers, the Tribunal adjourned the hearing to allow for an off-transcript discussion of his application in a planning meeting (a case conference process). The result was that Mr Saggers did not press his application for consideration of this additional material. The hearing then resumed. 18 There was no objection by the Department to Mr Saggers making submissions going to his abuse of public office point, based upon the terms of the Sydney Market Authority (Dissolution) Act 1997 (Dissolution Act) and he did so in the course of the proceedings. 19 Almost all of the documents in issue fall into two broad types: records of communications passing between the CSO and its agency clients; and records of communications passing between the CSO and the solicitors for the opposite party to the negotiations, Middletons Moore and Bevins (MMB) (now Acuiti Legal) acting for SML. 20 The Tribunal has now dealt at length in many decisions with the approach to be taken to the interpretation of cl 10 and its application to documents in FOI cases. We will not set that material out in detail here. It is familiar to the present applicant and his colleague, Mr Cianfrano, as it has been an issue in many of the cases that they have brought to the Tribunal. 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.' 22 The Department organised the Documents into the following business groupings: · Group 1A, Internal CSO Documents: 4, 7, 8, 9, 11, 14, 37, 43, 48 · Group 1B, Communications between CSO and client or counsel: 3, 5, 6, 10, 12, 13, 15, 16, 17, 41 · Group 1C, Letters between CSO to MMB as follows: 31, 33-36, 40, 41, 44-47, 49-57 · Group 1D, Draft letters from CSO to MMB: 1, 2, 32 · Group 1E, Draft short minutes of order, deed of release: 38, 39, 58 · Group 1F, Draft bills, letters enclosing CSO invoice for professional services, tax invoices issued by CSO: 18-30 [not pressed]; 59-63 [60 and 63 not pressed]. 23 Necessarily, applicants in FOI cases have only a limited knowledge of the contents of the documents the subject of claims for exemption. This knowledge is usually confined to the descriptions given in the schedule of documents as to the nature of each document. 24 The Tribunal has examined each of the documents and is satisfied that the above groupings provide reasonable descriptions of the business categories into which the documents fall. 25 The Department's submission is that the CSO's client was the State of New South Wales, and accordingly the CSO dealt, as required, with the group of agencies given the task of managing the sale process on behalf of the Government. The Tribunal is satisfied that the State Government was the client of the CSO in this instance, rather than say a specific agency of the State Government. The sale was the subject of Cabinet decisions, the ultimate agreement being executed on behalf of the Crown by the Treasurer following a Cabinet decision. 26 The Tribunal is satisfied that the CSO was involved in a solicitor-client relationship. The affidavit from the Department and the material scrutinised show that the CSO was consulted in a professional capacity. The Tribunal is satisfied that the documents in Group 1A are internal file notes and were made in confidence within a professional relationship of lawyer and client. The same applies to Group 1B which are all confidential communications passing between solicitor and client, within a professional relationship and giving legal advice and representation, or between solicitor and legal counsel. Group 1C and Group 1D comprise final texts or drafts, respectively, of letters from CSO to MMB. In the case of Group 1E, Documents 38 and 39 are draft documents for filing in Court and Document 58 consists of copies of the Deed of Release in respect of the sale of the Crown's reversionary interests in the site. The copies are not signed by both parties. 27 Mr Cianfrano's submissions involved some misunderstandings of the scope of legal professional privilege. 28 One was that he saw legal professional privilege as only applying to the immediate exchanges between client and lawyer within which information is given confidentially by the client about his or her circumstances to the lawyer and the lawyer provides confidential advice in reply. 29 While this is the paradigm situation, the privilege can not end there for its practical purposes in connection with the administration of justice to be served, as is reflected in the various categories listed by Lockhart J. The privilege does not, for example, cease to apply in the circumstance where as here the lawyer has conveyed limited information provided in confidence to the various government agencies with a connection to the matter in order to give effect to instructions. 30 The second line of attack made by Mr Saggers and Mr Cianfrano was based on a limitation the law places on the availability of legal professional privilege. It is accepted that legal professional privilege can not be availed of to refuse to produce documents if the documents contain relevant evidence of a crime or fraud. But that does not represent the limit of this exception. The exception also denies privilege to a communication in furtherance of an illegal purpose, directed to frustrating the processes of the law and abuse of public office. 31 The leading Australian case is Attorney General of the Northern Territory v Kearney (1985) 158 CLR 500. In that case the Government had made a regulation extending enormously the town boundaries of Darwin and Katherine, with the result that under the applicable law the land brought within the town boundary was excluded (unless the regulation was void) from the scope of Aboriginal land claims relating to unalienated Crown Land in those regions of the Northern Territory. While there was some doubt as to whether the claimants in two extant land claims relating to these regions were affected, it was accepted that, without doubt, a third land claim was directly affected as it had been filed after the regulation became law. 32 The claimants involved in those claims sought access to the documents relating to the making of the regulation. They were met by a claim for legal professional privilege. The Commissioner ordered production of the documents, denying the privilege on the basis that the documents related to a process which had an ulterior purpose, and not a planning purpose, namely the defeat of Aboriginal land claims. 33 This decision was upheld by a single judge of the Federal Court, by the Full Court of the Federal Court and then by the High Court. Gibbs CJ stated at 515: ' It would be contrary to the public interest which the privilege is designed to secure – the better administration of justice – to allow it to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law. It would shake public confidence in the law if there was reasonable ground for believing that a regulation had been enacted for an unauthorised purpose and with the intent of frustrating a legitimate claim, and yet the law protected from disclosure the communications made to seek and give advice in carrying out that purpose.' 34 Mason and Brennan JJ agreed. Wilson J observed at 525 that the 'distinction between a deliberate and mistaken misuse of power is to my mind of crucial significance.' He noted at 525 that in deciding whether the privilege is lost: 'The test goes to the professional quality of the relationship. That quality depends on the good faith, the integrity that the client brings to the consultation, not upon the correctness or otherwise of the advice that may be given.' Dawson J dissented. 35 Mr Saggers' contention is that here unlawful conduct occurred, amounting to abuse of public office or furtherance of an illegal purpose. He referred to the terms of the Dissolution Act. He noted that the Act empowered the Minister to sell the Sydney Markets. He claimed that the sale process was unlawful as, despite his best efforts and his and Mr Cianfrano's many applications, they had not been able to find the instrument required by s 5(3) of the Act, the Minister's order in writing directing the transfer of the assets and business undertaking to SML; nor the order excluding items from the sale (s 8). 36 If Mr Saggers is right and no such instrument has been created, the Tribunal is not satisfied that this kind of omission involves the kind of egregious misconduct to which the limitation allowing for the removal of the protection of legal professional privilege is directed. 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. 37 In making these observations the Tribunal reiterates that no finding is made in this case along the lines asserted by Mr Saggers and Mr Cianfrano as to the alleged failure of the relevant Minister to make orders in writing in respect of the transfer of the business of Sydney Markets Authority. 38 In light of these conclusions there is no need to consider the other heads of exemption. 39 Decision under review is affirmed. 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.