CITATION: Diamond v Gosford City Council [2010] NSWADT 134 DIVISION: General Division APPLICANT Neville Diamond PARTIES: RESPONDENT Gosford City Council FILE NUMBER: 073203 HEARING DATES: 9 December 2009 SUBMISSIONS CLOSED: 29 January 2010 DATE OF DECISION: 2 June 2010 BEFORE: Wilson R - Judicial Member CATCHWORDS: Legal professional privilege exemption LEGISLATION CITED : Freedom of Information Act 1989 Grant v Downs 135 CLR 674 CASES CITED: University of NSW v McGuirk [2006] NSWSC 1362 McGuirk v University of NSW [2009] NSWCA 321. APPLICANT In person REPRESENTATION: RESPONDENT M Everingham, solicitor ORDERS: The decision under review is affirmed. REASONS FOR DECISION 1 The applicant commenced these proceedings in the Tribunal pursuant to the provisions of the Freedom of Information Act 1989 seeking access to certain documents held by the respondent following an unsuccessful internal review application under the legislation in relation to those documents. 2 The documents in question are subject to a claim by the respondent that they are exempt as they all fall within the legal professional privilege exemption. These documents are contained in exhibit RR1. At hearing the applicant narrowed his claim before this Tribunal to documents which reveal any instructions given by a Mr. Ford, a Council legal officer, to the respondent's legal advisors concerning litigation and disputes involving the respondent and particular third parties. These disputes have not finally resolved, although a temporary "resolution" is in place at present. Generally this litigation concerned the location of certain boreholes, access to water rights and extraction of ground water. Whilst this has assisted the Tribunal greatly, it still has not removed the requirement to peruse all the documents the subject of the exemption claim. However, the Tribunal ought to give particular attention to documents falling within this narrowed claim so as to ensure that the applicant's particular concerns are adequately addressed. 3 Under the general law the privilege relied upon functions so as to keep confidential certain aspects of the relationship between client and a legal advisor. It does this by protecting from all forms of compulsory disclosure certain, but not all, communications involved in, or related to, this relationship. Where this privilege applies a person may resist the giving of information or the production of documents which would reveal confidential communications between that 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 P/L v ACCC [2002] HCA 49). This authority is commonly referred to in the decisions of this Tribunal to date as the starting point for analysis. Thus, the privilege protects from disclosure: (a) communications between client and legal advisor that are made to enable the client to obtain, or the advisor to give, legal advice (the advice aspect of the privilege); and (b) communications between client and legal advisor, or either of them and a third party, that are made with reference to, or for the purposes of, litigation that is then taking place or is in the contemplation of the client (this is the litigation aspect). In general terms it will suffice if the purpose of the document is to conduct, or to aid in the conduct, of such litigation ( Grant v Downs (1976) 135 CLR 674 per Barwick CJ ). 4 Examples of the communications and information falling within the privilege are set forth in Trade Practices Commission v Sperling (1979) 36 FLR 244 at 245-6. Again, this authority is commonly cited in the decisions of this Tribunal. 5 Whether such communications are protected by this privilege depends upon the purpose for which they are brought into being, that is, their intended use. If the actual purpose is to obtain (or give) such advice, or is made with reference to such litigation, then the communication will only be privileged if that purpose is the dominant purpose. It is this test that the exemption relied upon applies for the purposes of the legislation. The advice aspect of the privilege protects not only the acts of communication whereby the advice is sought or given. The content of the advice is also protected from disclosure so that , for example, notes made of legal advice given orally will be protected as will be discussions at meetings, involving the client's staff, concerning that advice. 6 The privilege however will only persist so longed as it is not waived and it will be displaced where the relevant communication has the purpose of facilitating the commission of a crime or an act of fraud. 7 The documents contained in exhibit RR1 are quite voluminous. However, although they have all been perused individually, it is sufficient for the purposes of these reasons to set forth the several categories into which they fall whilst at the same time describing each category in such a way as to reveal the reasons why the documents do, or do not, fall within the privilege. These categories are as follows: (a) letters from the respondent to its solicitor concerning pending or anticipated litigation; (b) letters from the solicitor to the respondent concerning pending or anticipated litigation; (c) letter from Counsel to the respondent's solicitors concerning pending litigation; (d) respondent's internal memoranda communicating and discussing legal advice received; (e) letters from the respondent to its solicitors seeking legal advice; (f) letters from the solicitor rendering legal advice; (g) respondent's internal memoranda concerning anticipated litigation; (h) letter and report to the respondent from a third party concerning pending or anticipated litigation; (i) respondent's notes of internal meeting concerning pending or anticipated litigation; (j) respondent's internal memoranda seeking legal advice; and (k) respondent's minutes of meetings concerning received legal advice. 8 It is not necessary to go outside the contents of these documents in order to determine the dominant purpose for which they were brought into being. In relation to each category of documents the documents themselves show that the dominant purpose concerned legal advice requested or received or to aid in the conduct of pending or anticipated litigation. Consequently each of the individual documents prima facie is protected by the privilege. There is no suggestion in the evidence that the respondent has waived privilege over these documents. 9 The applicant however argues that the privilege is displaced in relation to these documents because they have been used to facilitate illegal conduct and fraudulent activities. The basis for this argument is set forth in exhibit AA1. By this exhibit the applicant asserts that he has researched many activities undertaken by the respondent and has investigated its affairs on a fairly broad basis. No doubt that is so. By reason of his researches the applicant has formed the view that the respondent has engaged, inter alia, in illegal activities, misadministration and misleading conduct. There is no doubt that the applicant believes that this is so. However, it would be improper for the Tribunal to make any factual determinations of the kind alleged on the evidence that has been adduced by the applicant. Whenever, in any type of proceedings, a tribunal is requested to make determinations as to acts of impropriety alleged against one of the parties the evidence must be detailed, cogent and persuasive. No tribunal is entitled to act on the assertions of the alleging party alone: the party making the allegations is required by law to go beyond mere assertions and must provide the tribunal with sufficient evidence so that the tribunal may determine for itself whether the allegations of impropriety have been made out or not. The requisite evidence is absent in these proceedings. This does not question the bona fides of the applicant, nor is it critical of the way in which the applicant has presented his case. All it means is that the Tribunal in this matter cannot make the findings and determinations, on the evidence presented, that the applicant presses for. Equally, this does not mean that the Tribunal expresses any views adverse to the respondent arising from the applicant's argument. In substance, by reason of the nature of the evidence presented, the Tribunal is not in a position to even embark on an inquiry into the alleged improprieties. 10 Consequently, there being no waiver and no proof that the privilege has been displaced by facilitating improprieties, the exemption has application to the documents in question. Perusing these documents evidences that there is no realistic scope for granting access to them by excising parts that bring the exemption into play: excision would remove most, if not all, of the contents of the documents so that there is no basis for finding that the applicant would accept the excision of material that is necessary. 11 The remaining question is whether the Tribunal may nevertheless grant access to the documents in the exercise of discretionary powers. The discretion to grant access to documents even though exemptions may apply was established by the decision in University of New South Wales v McGuirk [2006] NSWSC 1362. However, the discretion does not apply where the ground of exemption is legal professional privilege (McGuirk v University of NSW [2009] NSWCA 321). In strict point of law the latter decision established the principle that this Tribunal cannot, in the exercise of its discretionary powers, waive legal professional privilege. However, this Tribunal has consistently applied that decision upon the basis that the Court of Appeal, at least implicitly, decided that the Tribunal's discretionary power has no application where the ground of exemption is based on legal professional privilege. This approach should be adopted here. Consequently, there is no discretionary basis upon which access to the documents may be granted given that the documents fall within the legal professional privilege exemption as provided in the legislation. 12 Given these findings the Tribunal affirms the decision under review. 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.