Reported Decision: 166 IR 459 New South Wales Court of Appeal CITATION: Valantine v Technical and Further Education Commission & Anor [2007] NSWCA 208 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 06/06/07 JUDGMENT DATE: 20 August 2007 JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; Gzell J at 3 DECISION: Orders not justified by the Government and Related Employees Tribunal Act 1980 and appellant could not be required to produce documents in contravention of legal professional privilege, the privilege against self-incrimination or the privilege against exposure to penalties. Appeal allowed, orders set aside, Commission to pay costs of appeal. CATCHWORDS: ADMINISTRATIVE LAW - Appeals from Administrative Authorities - Government and Related Employees Tribunal - Head Teacher employed by Technical and Further Education Commission found by Officer appointed by the Commission to have been guilty of breaches of discipline and demoted to teacher - Appeal to Tribunal - Hearing in formal sitting evidence being given on oath subject to cross-examination and with the Commission's case presented first - Power in the Tribunal to make orders for discovery of documents in specified circumstances under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1) - Tribunal made order that the appellant lodge copies of all documents relevant to the appeal, copies of a written case setting out the arguments on which he relied including a case outline, issues in dispute, witness statements and statement of the date he supplied copies of the documents to the Commission - Appeal against those orders - Whether orders justified under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1), s 39 or s 43(1) - Whether legal professional privilege abrogated - Whether it prevented the Tribunal requiring the appellant to lodge witness statements and any other documents within the ambit of the privilege - Whether the privilege against self-incrimination abrogated by the Government and Related Employees Appeal Tribunal Act 1980 and whether it prevented the Tribunal from requiring the appellant to lodge any documents that might tend to incriminate him - Whether the privilege against exposure to penalties is capable of application to quasi-judicial proceedings and whether it is capable of application to formal sittings of the Tribunal - Whether the privilege is excluded either expressly or necessary implication - Whether reduction of rank and loss of salary are exposures to penalties - Whether the appellant was exposed to penalties before the Tribunal notwithstanding that he had already being demoted Public Sector Employment and Management Act 2002 Government and Related Employees Appeal Tribunal Act 1980 Uniform Civil Procedure Rules 2005 LEGISLATION CITED: Evidence Act 1995 Judicature Act Technical and Further Education Commission Act 1990 Trade Practices Act 1974 (Cth) Baker v Campbell (1983) 153 CLR 52 Esso Australia Resources Ltd v Federal Commissioner Taxation (1999) 201 CLR 49 Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405 Attorney-General (NT) v Maurice (1986) 161 CLR 475 Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63 Sorby v The Commonwealth (1983) 152 CLR 281 Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 Rich v Australian Securities and Investment Commission (2004) 220 CLR 129 Rich v Australian Securities and Investments Commission (2003) 183 FLR 361 Pyneboard Pty Ltd v Trade Practices Commission (1982-1983) 152 CLR 328 CASES CITED: R v Kempley (1944) 44 SR (NSW) 416 Kempley v R [1944] ALR 249 Police Service Board v Morris (1984-1985) 156 CLR 397 Smith v Read (1736) 1 Atk 526 (26 ER 332) Honeywood v Selwin (1744) 3 Atk 276 (26 ER 961) Nelme v Newton, noted as a footnote to MacCallum v Turton (1828) 2 Y & J 183 at 186 (148 ER 883] Scott v Miller (No 2) (1859) Johns 328 (70 ER 448 Public Sector Employment and Management Act 2002 Borland v NSW Deputy Coroner [2006] NSWSC 982 Potter v Minahan (1908) 7 CLR 277 Tania Sheldon v Managing Director of the NSW Technical and Further Education, Appeal No 492 of 1995, 16 April 1997 Calman v Commissioner of Police (1999) 167 ALR 91 Michael George Valantine - Appellant PARTIES: Technical and Further Education Commission - First Respondent Government and Related Employees Appeal Tribunal - Second Respondent FILE NUMBER(S): CA 40438/06 COUNSEL: Mr R Lovas/ Dr S Blount - Appellant Ms E Brus - Respondent SOLICITORS: Gary Cleary & Associates - Appellant IV Knight, Crown Solicitor - Respondent LOWER COURT JURISDICTION: Government and Related Employees Appeal Tribunal LOWER COURT FILE NUMBER(S): GREAT PSD/18/05 LOWER COURT JUDICIAL OFFICER: Chairperson M Oakman LOWER COURT DATE OF DECISION: 09/06/06 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40438/06 BEAZLEY JA TOBIAS JA GZELL J MONDAY 20 AUGUST 2007 MICHAEL GEORGE VALANTINE v TECHNICAL AND FURTHER EDUCATION COMMISSION & ANOR Judgment The appellant was employed by the first respondent Commission as a head teacher. An officer appointed by the Commission found the appellant guilty of breaches of discipline and he was demoted to a teacher. He appealed to the second respondent, the Government and Related Employees Tribunal. Such an appeal is heard in a formal sitting, evidence being given on oath subject to cross-examination and with the Commission's case presented first. The Tribunal has power to make orders for discovery of documents in specified circumstances under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1). The Tribunal made an order that the appellant lodge with the Registrar copies of all documents relevant to the appeal, copies of a written case setting out the arguments on which he relied including a case outline, issues in dispute, witness statements and a statement of the date he supplied copies of these documents to the Commission. The Appellant appealed to the Court against these orders. HELD (per Gzell J, Beazley and Tobias JJA agreeing): (1) The orders were not justified by the Government and Related Employees Appeal Tribunal Act 1980, s 44(1) (at 7 [15]), nor by the general power in s 39 which cannot be used to override the specific requirements of s 44(1) (at 10 [27]), nor by s 43(1) that enables the Tribunal to inform itself in such manner as it thinks fit (at 10 [30]). ss 39, 43(1), 43(2) 44(1)(a)-(e), 44(2), Government and Related Employees Appeal Tribunal Act 1980; referred to. r 33.3(4)(a), 34.1, Uniform Civil Procedure Rules, 2005; compared. (2) Legal professional privilege is not abrogated by the Government and Related Employees Appeal Tribunal Act 1980 (at 12 [39]), and it prevented the Tribunal requiring the appellant to lodge witness statements and any other documents within the ambit of the privilege (at 13 [44]). Esso Australia Resources v Federal Commissioner of Taxation (1999) 201 CLR 49; cited. Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405; cited. Attorney-General (NT) v Maurice (1986) 161 CLR 475; cited. Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63; followed. s 44(1), Government and Related Employees Appeal Tribunal Act, 1980; considered. (3) The privilege against self-incrimination is not abrogated by the Government and Related Employees Appeal Tribunal Act 1980 (at 14 [47]) and the Tribunal was not entitled to require the appellant to lodge any documents that might tend to incriminate him (at 14 [48]). Sorby v The Commonwealth (1983) 152 CLR 281; approved. Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412; cited. (4) The better view is that the privilege against exposure to penalties is capable of application to quasi-judicial proceedings (at 20 [72]) and it is capable of application to formal sittings of the Tribunal it not having been excluded either expressly or by necessary implication (at 21 [75]). Baker v Campbell (1983) 153 CLR 52; followed. Pyneboard Pty Ltd v Trade Practices Commission (1982-1983) 152 CLR 328; considered. R v Kempley (1944) 44 SR (NSW) 416; considered. Kempley v R [1944] ALR 249; considered. Sorby v The Commonwealth (1983) 152 CLR 281; discussed. Crafter v Kelly [1941] SASR 237; cited. Police Service Board v Morris (1984-1985) 156 CLR 397; considered. The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; discussed. Smith v Read (1736) 1 Atk 526 (26 ER 332); followed. Calman v Commissioner of Police (1999) 167 ALR 91; considered. The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; cited. Rich v Australian Securities and Investment Commission (2004) 220 CLR 129; cited. Rich v Australian Securities and Investment Commission (2003) 183 FLR 361. Potter v Minahan (1908) 7 CLR 277; cited. (5) The appellant was exposed to penalties by reduction of rank and loss of salary (at 23 [82]). Police Service Board v Morris (1984-1985) 156 CLR 397; applied. Borland v NSW Deputy Coronor [2006] NSWSC 982; cited. Tania Sheldon v Managing Director of the NSW Technical and Further Education, Appeal No 492 of 1995, 16 April 1997; considered. (6) The appellant was exposed to penalties notwithstanding that he had already been demoted by administrative decision. Issues are ventilated before the Tribunal in the manner of curial proceedings that can result in penalties imposed below being overruled, confirmed or increased. The jeopardy that an appellant will suffer if required to produce documents that expose the appellant to a penalty is just as much present in the proceedings before the Tribunal as it is in proceedings in a court room (at 24 [91]). Police Service Board v Morris (1984-1985) 156 CLR 397; considered. Rich v Australian Securities and Investment Commission (2004) 220 CLR 129; cited. Honeywood v Selwin (1744) 3 Atk 276 (26 ER 961); considered. Nelme v Newton; referred to. MacCullum v Turton (1828) 2 Y & J 183 (148 ER 883); considered. Scott v Miller (No 2) (1859) Johns 328 (70 ER 448); considered. s 22D(1)(c), Technical and Further Education Commission Act 1990; referred to. Chapter 1 A, Public Sector Employment and Management Act 2002; referred to. ORDERS: (1) Appeal allowed. (2) Decision of the Tribunal set aside. (3) The first respondent to pay the costs of the appeal. 1 BEAZLEY JA: I agree with Gzell J. 2 TOBIAS JA: I agree with Gzell J. 3 GZELL J: Michael George Valantine, the appellant, was employed by the Technical and Further Education Commission, the first respondent, as a head teacher in the TAFE Commission Division of the Government Service. He was charged with breaches of discipline. The charges were considered by a senior officer of the Commission appointed for that task. The officer imposed the penalty of demotion to a teacher position with respect to some of the charges. For others, Mr Valantine was reprimanded and others were dismissed. The officer directed that the penalties of demotion to teacher position should be at the salary level at the top of the teacher salary scale. 4 The Government and Related Employees Appeal Tribunal Act 1980, s 24(1) provided that an employee might appeal to the Government and Related Employees Tribunal, the second respondent, against a decision of an employer of a kind referred to in s 23(1). That provision included, in s 23(1)(b), a decision to reduce the rank, classification, position, grade or pay of the employee. Mr Valantine appealed to the Tribunal under those provisions against the penalties of demotion. 5 Following a contested interlocutory hearing, Chairperson Oakman decided that an order should issue under s 44(1) of the Government and Related Employees Appeal Tribunal Act 1980 requiring Mr Valantine to discover a series of documents. A few days later, Senior Chairperson Lynch issued an order repeating the terms of the decision made by Chairperson Oakman. 6 From the decision of Chairperson Oakman and the order of Senior Chairperson Lynch, Mr Valantine appeals to this Court under the Government and Related Employees Appeal Tribunal Act 1980, s 54(b) which enables an appellant before the Tribunal to appeal to the Supreme Court against any decision of the Tribunal on a question of law. In the alternative, Mr Valantine seeks orders in the nature of certiorari setting aside the decision and order of the Tribunal. The decision and the order 7 Chairperson Oakman's decision was in the following terms: "An order is to issue to the appellant under section 44 in the usual terms, that is, requiring him to lodge with the Registrar of the Tribunal at Level 2, 1 Oxford St, Darlinghurst on or before 10 a.m. on Wednesday 28 June 2006: (a) three copies of all documents in his possession relevant to the appeal; and (b) three copies of a written case setting out the arguments on which he relies in relation to the appeal. Documents must include a case outline, issues in dispute and witness statements. Together with a statement of the date he supplied a copy of such documents and written case to the respondent." 8 The order of Senior Chairperson Lynch was headed: "Government and Related Employees Appeal Tribunal Act, 1980 Section 44". It identified the appeal by Mr Valantine, contained the terms of Chairperson Oakman's decision and added a requirement to number and index the documents. It was addressed to Gary Cleary & Associates, the solicitors for Mr Valantine, and concluded with the warning that the Government and Related Employees Appeal Tribunal Act 1980, s 44(2) provided that a person who failed to comply with the order was guilty of an offence and liable on conviction to a penalty not exceeding 5 penalty units. A penalty unit is $550.00. Section 44 of the statute 9 In making the decision and issuing the order Chairperson Oakman and Senior Chairperson Lynch purported to act under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1). That provision is in the following terms: "In relation to an appeal, the Senior Chairperson or a Chairperson, by instrument in writing: (a) may require a person, being an employer or any person entitled, pursuant to section 37 (2) or 38 (2), to be present at a sitting of the Tribunal for the purpose of hearing the appeal, to produce, on or before such date as is specified in the instrument, for the inspection of any other such person so specified, any document or exhibit relevant to the appeal and which is so specified, (b) may require a person referred to in paragraph (a) to do either or both of the following things, namely: (i) to lodge with Tribunal, on or before such date as is specified in the instrument, a written case setting out the arguments on which the person relies in relation to the appeal, (ii) to serve, on or before such date as is specified in the instrument, on any other such person so specified, a copy of a written case referred t in subparagraph (i), (c) may require the persons referred to in paragraph (a) to lodge with the Tribunal, on or before such date as is specified in the instrument, a statement of such facts or matters as are agreed upon between them in relation to the appeal, (d) may require any person to appear before the Tribunal and to give evidence, and (e) may require any person to produce before the Tribunal any document or exhibit relevant to the appeal." The application of s 44(1) to the decision 10 The decision of Chairperson Oakman that an order issue to Mr Valantine requiring him to lodge with the Registrar of the Tribunal three copies of all documents in his possession relevant to the appeal, is not justified by the power in the Government and Related Employees Appeal Tribunal Act 1980, s 44(1)(a). 11 That provision adopts the requirement of a subpoena (Uniform Civil Procedure Rules 2005, r 33.3(4)(a)) and a notice to produce (Uniform Civil Procedure Rules 2005, r 34.1) that a document to be produced must be identified or specified. The Government and Related Employees Appeal Tribunal Act 1980, s 44(1)(a) is limited to requiring a person in the position of Mr Valantine to produce specified documents. It does not empower a Senior Chairperson or a Chairperson to require an appellant to produce all documents relevant to an appeal. Furthermore, the provision does not justify a requirement to lodge documents with the Tribunal. It is limited to requiring the production of documents for the inspection of other parties to an appeal. 12 Nor was the decision requiring the production of the documents justified by the Government and Related Employees Appeal Tribunal Act 1980, s 44(1)(b). That provision is limited to the lodgement and/or service of a written case setting out the arguments on which a person relies in relation to an appeal. 13 The Government and Related Employees Appeal Tribunal Act 1980, s 44(1)(c) did not authorise the decision. It is limited to the production of a statement of agreed facts. Section 44(1)(d) does not apply to the production of documents. It is limited to requiring a person to appear before the Tribunal to give evidence. 14 Nor did the Government and Related Employees Appeal Tribunal Act 1980, s 44(1)(e) justify the making of the decision. In contrast with the requirement that a written case be lodged with the Tribunal under s 44(1)(b)(i), or that a statement of agreed facts be lodged with the Tribunal under s 44(1)(c), s 44(1)(e) empowers a decision to require any person to produce a relevant document or exhibit "before the Tribunal". That phrase is used in s 44(1)(d) enabling any person to be required to appear before the Tribunal to give evidence. That means the power is to require any person to appear or to produce a document or exhibit before a sitting of the Tribunal. It does not justify the decision to require Mr Valantine to lodge documents with the Registrar of the Tribunal. 15 It follows, in my view, that Chairperson Oakman erred in law in deciding to require Mr Valantine to lodge copies of all relevant documents in his possession with the Registrar of the Tribunal in purported reliance upon the Government and Related Employees Appeal Tribunal Act 1980, s 44(1). 16 The Government and Related Employees Appeal Tribunal Act 1980, s 44(1)(a) empowers the Senior Chairperson or a Chairperson to require a person in the position of Mr Valantine to produce for the inspection of his employer specified documents or exhibits. Had Mr Valantine been required to produce specified documents, that provision might have justified the further requirement in Chairperson Oakman's decision that Mr Valantine lodge a statement of the date he supplied a copy of the documents to the Commission. But as the requirement to produce all relevant documents was beyond power, so, too, was the implicit requirement that Mr Valantine supply copies of the documents to the Commission. 17 The decision to require Mr Valantine to lodge and to serve on the Commission a written case setting out the arguments on which he relied in relation to the appeal was within the powers contained in the Government and Related Employees Appeal Tribunal Act 1980, s 44(1)(b). The requirement that the written case include a case outline and issues in dispute was, probably, within that power. But s 44(1)(b) did not empower Chairperson Oakman to require Mr Valantine to lodge and serve on the Commission, witness statements. The power in s 44(1)(b) is limited to the lodgment and service of a written case setting out arguments. Witness statements are distinct from a written case and there is no mention of them in that provision. 18 Nor do any of the other provisions of s 44(1) of the Government and Related Employees Appeal Tribunal Act 1980 justify the decision. The requirement to lodge and, impliedly, to serve witness statements with a written case was not directed to the language of s 44(1)(a), but it was called in aid of the decision. The provision does not justify a requirement to lodge any witness statements with the Tribunal. It does not justify a requirement to bring into existence witness statements not already in existence. Nor does it justify a requirement for production for inspection of witness statements already in existence. It could not be a proper exercise of power to require the production of documents the subject of legal professional privilege. I will return to this issue later in these reasons. 19 None of the requirements in the decision of Chairperson Oakman were justified by the Government and Related Employees Appeal Tribunal Act 1980 s 44(1) and, in my view, the Chairperson erred in law in directing the issue of an order under that provision. The application of s 44(1) to the order 20 While the Government and Related Employees Appeal Tribunal Act 1980, s 44(1) merely requires an instrument in writing, Senior Chairperson Lynch's order was, no doubt, issued because Chairperson Oakman's decision was expressed in terms of the future issue of an order. 21 The order suffers the same errors as does the decision because its terms mirror those of the decision. 22 It suffers the further problem that it is directed to the solicitors for Mr Valantine and warns the solicitors of the content of the Government and Related Employees Appeal Tribunal Act 1980, s 44(2). Any attempt to prosecute Mr Valantine for failure to comply with the order might well suffer the problem that personal service of requirements under s 44(1) is a prerequisite to prosecution under s 44(2). 23 Insofar as the order was addressed to the solicitors, they could not be required to produce documents for inspection under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1)(a) because the persons against whom such a requirement can be raised are the employer and persons entitled to be present at an appeal hearing under s 37(2) or s 38(2) and solicitors for a party are not included in those provisions. 24 Appeal hearings of the Tribunal are either formal or informal as is provided in the Government and Related Employees Appeal Tribunal Act 1980, s 34. An appeal under s 24 requires a formal sitting of the Tribunal under s 36. Section 38(2) provides that the persons entitled to be present at a formal sitting of the Tribunal are those specified in s 37(2). Relevantly for present purposes, Mr Valantine as appellant was entitled to be present in terms of s 37(2)(a) and the senior officer of the Commission who imposed the penalties on Mr Valantine was entitled to be present in terms of s 37(2)(b). The solicitors for Mr Valantine were not included in the persons specified in s 37(2). It follows that the power in s 44(1)(a) could not be exercised against the solicitors. 25 Since the solicitors were not persons referred to in the Government and Related Employees Appeal Tribunal Act 1980, s 44(1)(a), s 44(1)(b) did not apply to them, it being restricted to persons referred to in s 44(1)(a). And, for the same reason, the power in s 44(1)(c) could not have been exercised against the solicitors. While the solicitors might have been required to appear before the Tribunal and give evidence in terms of s 44(1)(d), that power was not invoked in the order. And while the power in s 44(1)(e) might have been exercised against the solicitors, for the reasons already expressed, that power is limited to a requirement to produce documents or exhibits before a sitting of the Tribunal on appeal. 26 It follows that none of the powers in the Government and Related Employees Appeal Tribunal Act 1980, s 44(1) empowered Senior Chairperson Lynch to issue an order directed to the solicitors or to Mr Valantine and the Senior Chairperson erred in law in doing so. Justification under other provisions? 27 The Government and Related Employees Appeal Tribunal Act 1980, s 39 provides that the procedure for the conduct of business at any sitting of the Tribunal shall, subject to the provisions of Part 4 of the Act and the regulations, be as determined by the Senior Chairperson. Section 44(1) is within Part 4. It follows, in my view, that the general power in s 39 cannot be used to override the specific requirements of s 44(1). 28 The Government and Related Employees Appeal Tribunal Act 1980, s 43(1) provides that the Tribunal is not bound by the rules or practice as to evidence and it may inform itself on any matter in such manner as it thinks fit. That power is, however, restricted by s 43(2) which prohibits the Tribunal from informing itself, or taking into consideration, any matter that has not been disclosed in evidence at a sitting of the Tribunal if the matter is one that ought, in the interests of justice, to be available for challenge or testing by the persons entitled to be present at the sitting. 29 That provision could not authorise the requirement that Mr Valantine lodge with the Tribunal copies of witness statements to enable the Tribunal to inform itself by access to them. The contents of a witness statement are, clearly, matters that, in the interests of justice, should be available for challenge or testing by persons entitled to be present at a sitting in terms of the Government and Related Employees Appeal Tribunal Act 1980, s 43(2). 30 In any event, the power to inform itself under the Government and Related Employees Appeal Tribunal Act 1980, s 43(1) could not, in my view, be exercised to defeat legal professional privilege. Legal professional privilege 31 While it may be assumed that the Government and Related Employees Appeal Tribunal Act 1980, s 43(1) has the effect of excluding the provisions of the Evidence Act 1995, common law legal professional privilege must, in my view, still apply to the proceedings of the Tribunal. 32 In Australia, common law legal professional privilege is not merely a rule of evidence applicable to judicial or quasi-judicial proceedings. It is a fundamental principle capable of applying in non-judicial proceedings (Baker v Campbell (1983) 153 CLR 52). 33 Unless excluded expressly or by necessary implication, legal professional privilege applies to orders that might otherwise be made for discovery by bodies such as the Tribunal. As Dawson J pointed out in Baker at 123, there is a presumption that there is no intention to interfere with basic common law doctrines unless the words of the statute expressly or necessarily require that result. Legal professional privilege falls within that presumption. 34 The degree of formality of formal sittings of the Tribunal is specified in the Government and Related Employees Appeal Tribunal Act 1980, s 38. It is in the following terms: "(1) Where a sitting of the Tribunal is formal, evidence in the proceedings before the Tribunal shall be given on oath and shall be subject to cross-examination. (2) The persons entitled to be present at a formal sitting of the Tribunal are the persons referred to in section 37 (2) (a), (b) and (c). (3) Where a sitting of the Tribunal is formal, the sitting shall be open to the public unless the Tribunal, on the application of a person entitled, pursuant to subsection (2), to be present at the sitting, otherwise directs in relation to the whole or any part of the sitting. (4) The persons entitled, pursuant to subsection (2), to be present at a formal sitting of the Tribunal are entitled to be represented by any other person (not being counsel or a solicitor) and may, with leave granted at the discretion of the Senior Chairperson or presiding Chairperson, be represented by counsel or a solicitor. (5) A person entitled, pursuant to subsection (2), to be present at a formal sitting of the Tribunal may call and examine any witness. (6) A person proposed to be called as a witness in proceedings at a formal sitting of the Tribunal, not being a person entitled, pursuant to subsection (2), to be present at the sitting, shall, unless the Tribunal otherwise orders, be excluded from the proceedings prior to giving evidence and the Tribunal may exclude a person proposed to be called as a witness from giving evidence if he or she has been present at the sitting prior to giving evidence. (7) Where a sitting of the Tribunal is formal, the proceedings before the Tribunal shall be recorded." 35 Furthermore, pursuant to the Government and Related Employees Appeal Tribunal Act 1980, s 42(1) the employer's case is presented first. While s 42(2) provides that that requirement does not remove from an appellant, or any other person, the onus of proving any ground on which the appellant relies, there is clearly an initial evidentiary onus on the employer. 36 There is no express abrogation of legal professional privilege. The statutory framework creating the adversarial procedures that apply to judicial hearings, including the provision for discovery in the Government and Related Employees Appeal Tribunal Act 1980, s 44(1), means, in my view, that the legislation lacks the necessary implication that legal professional privilege has been abrogated. 37 If common law legal professional privilege applies to judicial proceedings, in the absence of statutory provisions varying or replacing the privilege, there is no reason to impute a legislative intention to abrogate the privilege in relation to the formal sittings of the Tribunal. For such sittings, many of the procedures applicable to court hearings apply. 38 The power to direct discovery in the Government and Related Employees Appeal Tribunal Act 1980, s 44(1) is in aid of the formal procedures by which the Tribunal decides an appeal from a disciplinary penalty. This is quite different from a statutory provision enabling an authority to require a person to answer questions or produce documents in aid of its function to investigate whether an offence has been committed or a statutory provision has been contravened. In such a case, it is reasonable to conclude that the privilege has been impliedly abrogated. 39 In my view the legislation lacks express abrogation, or abrogation by necessary implication, of legal professional privilege and the presumption, that the privilege is not abrogated, applies. 40 Legal professional privilege arises when a communication, oral or written, is made for a dominant purpose that is privileged (Esso Australia Resources Ltd v Federal Commissioner Taxation (1999) 201 CLR 49 at 72-73). 41 One privileged purpose is to enable a client to obtain, or an adviser to give, legal advice. The other purpose is with reference to actual or anticipated litigation. 42 The privilege is largely concerned with communications, either oral or in writing. The rule is most often applied to communications between a client and a legal adviser. But communications passing between third parties and the adviser or the client are privileged where they are made in contemplation of existing or anticipated litigation and for the purpose of use in that litigation (Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405). 43 The rule also protects documents that are not communications if brought into existence for the dominant purpose of preparing for, or for use in, existing or contemplated judicial or quasi-judicial proceedings (Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490). Thus, statements from potential witnesses are subject to the privilege (Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63). 44 In my view, therefore, common law legal professional privilege prevented Chairperson Oakman and Senior Chairperson Lynch from requiring Mr Valantine to lodge with the Tribunal and provide the Commission with copies of witness statements and any other documents within the ambit of the privilege. Privilege against self-incrimination 45 A witness is not compelled to answer questions that may show that the witness has committed a crime with which the witness may be charged and the answers may place the witness in real and appreciable danger of conviction (Sorby v The Commonwealth (1983) 152 CLR 281 at 294. And see the discussion in this Court in Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 420-424). 46 The privilege is deeply ingrained in the common law and subject to the same presumption against abrogation that applies to legal professional privilege. It is not abrogated by statute except in the clearest terms (Sorby at 289, 309-310, 311). 47 For the reasons expressed with respect to legal professional privilege, I am of the view that the privilege against self-incrimination has not been abrogated by the Government and Related Employees Appeal Tribunal Act 1980. 48 It follows, in my view, that Chairperson Oakman and Senior Chairperson Lynch were not entitled to require Mr Valantine to lodge with the Tribunal any documents that might tend to incriminate him in terms of the privilege. Nor could he be required to provide copies of such documents to the Commission. Privilege against exposure to penalties 49 During the hearing of the appeal, the Court raised with counsel the question whether the privilege against exposure to penalties prevented Chairperson Oakman from making his decision and Senior Chairperson Lynch from making her order. Counsel were invited to provide additional written submissions on this issue and further submissions were received by the Court. 50 The privilege against exposure to penalties is one of a triumvirate of privileges that have some similarity with the privilege against self-incrimination, the other two being the privilege against exposure to forfeitures and the privilege against exposure to ecclesiastical censure (The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [13]). 51 The privilege had its origins in the rules of equity relating to discovery, when discovery and interrogatories were provided for under the rules made under the Judicature Act. But the principle that an order for discovery or for the administration of interrogatories in favour of the prosecutor, whether the prosecutor was the Crown or a common informer or some other person, should not be made where the proceeding was of such nature that it might result in a penalty was applied more generally (Rich v Australian Securities and Investment Commission (2004) 220 CLR 129 at [24]). 52 The history of the development of the privilege against exposure to penalties is set out in the judgment of McColl JA in this Court in Rich v Australian Securities and Investments Commission (2003) 183 FLR 361 at 399 and following. 53 The first question to be asked is whether the privilege can apply to quasi-judicial proceedings of the type administered by the Tribunal when sitting in formal session. 54 In Pyneboard Pty Ltd v Trade Practices Commission (1982-1983) 152 CLR 328, the High Court considered the requirement in the Trade Practices Act 1974 (Cth), s 155 to furnish information or to produce documents on notice by a member of the Trade Practices Commission, a failure to comply with which exposed the recipient of the notice to a civil penalty. It was held that a person could not rely upon the privilege against exposure to penalties to resist compliance with the notice. 55 At 337-341, Mason ACJ, Wilson and Dawson JJ considered two strands of authority, one in favour of the application of the privilege against exposure to penalties to non-judicial proceedings, the other against. 56 An example of the latter approach is the decision of Jordan CJ in R v Kempley (1944) 44 SR (NSW) 416. National security regulations fixed the maximum price at which specified goods could be sold. The Prices Commissioner was empowered to require any person to furnish information and answer questions. It was an offence for a person to refuse or fail to do so. His Honour, at 429, expressed the view that the rule of law that excuses a person from answering incriminating questions is a rule of evidence applicable to witnesses in a court of justice that is not inherently applicable to the questioning provided by the regulation. 57 An application for leave to appeal to the High Court in that case was refused (Kempley v R [1944] ALR 249). In Pyneboard at 338, Mason ACJ, Wilson and Dawson JJ pointed out, however, that three judges of the High Court in Kempley adopted the former approach in favour of the application of the privilege to non-judicial proceedings. For example, Starke J at 253 said that where authority is given to compel the examination of persons, the ordinary rule of the common law that protects a person from answering questions that tend to criminate applies unless expressly excluded. 58 It was in this context that Mason ACJ, Wilson and Dawson JJ at 341, refused to hold that the privilege against exposure to penalties cannot apply to non-judicial proceedings. They said: "In the light of these competing considerations we are not prepared to hold that the privilege is inherently incapable of application in non-judicial proceedings. The issue of its availability in these proceedings therefore falls to be decided by reference to the statute itself." 59 Murphy J at 346-347 said that whatever the standing of the privilege in judicial proceedings, he saw no reason for recognizing such privilege outside judicial proceedings. This was not so with respect to the privilege against self-incrimination which was part of the law of human rights and, therefore, available whether in judicial proceedings or otherwise unless excluded by "unmistakable language." 60 Brennan J, at 350, drew attention to the submission by the appellants that the privileges against self-incrimination and against exposure to penalties provided different grounds of excuse for not answering questions or not producing documents. At 351 his Honour noted that none of the Commission's powers or functions were judicial or quasi-judicial. They were wholly investigative. At 354-355, his Honour referred to his decision in Sorby that the privilege against self-incrimination is limited to judicial proceedings. At 349, his Honour approached the issue as a question of construction of the statute. Was the provision subject to a qualification that a person might refuse to comply with a notice if compliance might tend to expose that person to a penalty? 61 Sorby was concerned with the application of the privilege against self-incrimination to provisions of statutes conferring powers on Royal Commissioners enabling them to require witnesses to answer questions. Gibbs CJ saw no difficulty in applying the privilege to some of the statutory provisions in question. Mason, Wilson and Dawson JJ at 309 rejected a submission that privilege against self-incrimination is merely a rule of evidence applicable in judicial proceedings that cannot be claimed in an executive inquiry. Their Honours said that they adhered to the conclusion they expressed in Pyneboard that the privilege is inherently capable of applying in non-judicial proceedings. Murphy J at 311 repeated what he had said in Pyneboard. The privilege against self-incrimination is part of the common law of human rights. Unless excluded, it attaches to every statutory power, judicial or otherwise, to require persons to supply information. 62 Brennan J at 317-321 analysed the historical development of the privilege against self-incrimination from the abolition of the Court of Star Chamber and the Court of High Commission and concluded that historically the privilege had been limited to judicial proceedings. The common law had no occasion to extend protection to a witness in non-judicial proceedings. His Honour also took the view that, in principle, the privilege should be so limited. It was inappropriate that the measure of the testimonial obligation should be ascertained by the administrative decision of the person presiding over the non-judicial tribunal. His Honour therefore disagreed with this solution which was advocated by Napier J in Crafter v Kelly [1941] SASR 237 at 249. 63 In Police Service Board v Morris (1984-1985) 156 CLR 397 a majority of the High Court held that the privilege against exposure to penalties was capable of applying to a statutory provision that required members of the police force to answer questions tending to show the commission by them of disciplinary offences. However, their Honours held that the privilege was excluded in that case by necessary implication. 64 At 403, Gibbs CJ agreed with the views of Mason, Wilson and Dawson JJ in Pyneboard and Sorby, saying that it is now accepted that the privilege against exposure to penalties is capable of application in non-judicial proceedings. At 407-408, Wilson and Dawson JJ reiterated their view that the privilege was inherently capable of applying to the statutory provision in question. Murphy J, at 406-407, concluded that the privilege did not apply in non-criminal proceedings. Brennan J, at 411, observed that a majority of the High Court in Pyneboard and Sorby had decided that the privilege against self-incrimination was capable of applying to non-judicial proceedings and proceeded on that basis. He agreed with the Chief Justice that it had been excluded by the statutory provision in that case by necessary implication. 65 In Daniels the High Court reconsidered the Trade Practices Act 1974 (Cth), s 155 and concluded that legal professional privilege was not excluded by that provision. Pyneboard was not followed. At 559 [31], however, Gleeson CJ, Gaudron, Gummow and Hayne JJ expressed the view that the privilege against exposure to penalties serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it. But their Honours went on to say that there seemed little reason why the privilege should be recognised outside judicial proceedings: "However, there seems little, if any, reason why that privilege should be recognised outside judicial proceedings. Certainly, no decision of this Court says it should be so recognised, much less that it is a substantive rule of law." 66 This view was reiterated by Gleeson CJ, Gummow, Hayne, Callinan and Heydon in Rich at 142 [24]: "Although the privilege against exposure to penalties had its origins in the rules of equity relating to discovery, when discovery and interrogatories were provided for under the rules made under the Judicature Act , the Court of Equity's principle (that an order for discovery or for the administration of interrogatories in favour of the prosecutor, whether the prosecutor was the Crown or a common informer or some other person, should not be made where the proceeding was of such nature that it might result in a penalty or forfeiture) was applied more generally ( Naismith v McGovern (1953) 90 CLR 336 at 341-342, per Williams, Webb, Kitto and Taylor JJ). As was further pointed out in the joint reasons in Daniels Corporation ((2002) 213 CLR 543 at 559 [31]), the privilege against exposure to penalty now serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it (See Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129, per Burchett J). That is not to say that the privileges against exposure to penalties or exposure to forfeitures are substantive rules of law, like legal professional privilege, having application beyond judicial proceedings ( Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 559 [31]). In the present matter, however, the only issue is about the application of these privileges to discovery in judicial proceedings. No wider question arises." 67 There is a difference of judicial opinion at the highest level in Australia, then, as to whether the privilege against exposure to penalties applies to a quasi-judicial body such as the Government and Related Employees Appeal Tribunal. The position can, I think, be summarised as follows. Latham CJ, Starke and Williams JJ in Kempley at 251, 253, 254 thought the privilege was inherently capable of applying to non-judicial proceedings. McTiernan J, at 253, took the opposite view. Subject to it being expressly or by necessary implication excluded by statute, Mason ACJ, Wilson and Dawson JJ in Pyneboard, at 341, appear to favour the application of the privilege in non-judicial proceedings. So, also, Gibbs CJ, Wilson and Dawson JJ in Morris at 403, 407-408. Murphy J in Pyneboard, at 346-347 and Morris, at 406-407, set his face against its application outside judicial proceedings. Brennan J in Pyneboard at 356-357, apparently regarded the privilege as inapplicable to an investigative process. In Morris at 411 he observed that a majority in Pyneboard and Sorby had taken the opposite view. Gleeson CJ, Gaudron, Gummow and Hayne JJ in Daniels at 559 [31], appear to be against its recognition outside judicial proceedings, a view reiterated (Callinan and Heydon JJ replacing Gaudron J) in Rich at 142 [24]. 68 It would appear that seven members of the High Court favoured the view that the privilege against exposure to penalties applies to non-judicial proceedings. Three were definitely against that proposition and six were probably against it. However, the views expressed against the recognition of the privilege in non-judicial proceedings were all obiter and in Rich were expressed somewhat elliptically. 69 Accordingly, just as there is no binding decision of the High Court that the privilege should be recognised outside judicial proceedings and is a substantive rule of law, there is no binding decision of that Court to the contrary. 70 Furthermore, it seems to me that there is some doubt as to what is meant by "judicial proceedings" in this context and that is yet to be clarified authoritatively. In Pyneboard at 351, Brennan J noted that none of the Commission's powers or functions were judicial or quasi-judicial. They were wholly investigative. Was his Honour grouping quasi-judicial proceedings within "judicial proceedings" when he expressed the view that the privilege did not apply outside them? And his Honour in Sorby at 321 recognised that the privilege might be applied by administrative decision if the statute so provided: "…The measure of the testimonial obligation cannot be ascertained by the administrative decision of the person presiding over the non-judicial tribunal unless the statute, either expressly or impliedly, empowers him to do so;…" 71 His Honour appears to regard a non-judicial tribunal as an administrative one, thus excluding a quasi-judicial tribunal from that category. Alternatively, his Honour's allowance that a non-judicial tribunal might be empowered by necessary implication to decide whether the privilege applies is more likely to arise in a quasi-judicial tribunal than a purely administrative one. 72 In my opinion, and whatever may be the position with respect to purely non-judicial or purely administrative proceedings, the better view is that the privilege is capable of application to quasi-judicial proceedings such as those in the present case. I am not constrained by precedent to find to the contrary. 73 Subject to what is said about the imposition of a penalty in this case, Mr Valantine was just as much at risk of a penalty as were the appellants in Rich who faced the prospect of being disqualified from managing a corporation for such period as the Court considered appropriate. In terms of an early statement of the rationale for the privilege by Lord Hardwicke LC in Smith v Read (1736) 1 Atk 526 (26 ER 332), Mr Valantine ought not to have been ordered to make discovery: "I think the defendant is not bound to discover, for there is no rule more established in equity, than that a person shall not be obliged to discover what will subject him to a penalty, or any thing in the nature of a penalty." 74 That rationale is equally applicable in circumstances where in a quasi-judicial setting in which sworn evidence is taken and the employer has the evidentiary onus of proof, an appellant should not be obliged to discover that which would subject him to a penalty. 75 In my view, privilege against exposure to penalties should apply to the formal sittings of the Tribunal. For the reasons discussed with respect to privilege against self-incrimination, I am of the view that the privilege has not been excluded either expressly or by necessary implication. Was Mr Valantine exposed to a penalty? 76 It is not merely an exaction of money by way of penalty that falls within the ambit of the privilege. In Morris at 403, Gibbs CJ attributed the privilege to exposure to "any kind of punishment" – "anything in the nature of a penalty". His Honour accepted as penalties the statutory entitlement of the Police Discipline Board to reprimand the offending member, to impose a penalty of not more than $500.00, to reduce the member in rank or to dismiss the member from the force. 77 In Rich at 144 [28], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ cited Honeywood v Selwin (1744) 3 Atk 276 (26 ER 961), Nelme v Newton, noted as a footnote to MacCallum v Turton (1828) 2 Y & J 183 at 186 (148 ER 883 at 884) and Scott v Miller (No 2) (1859) Johns 328 (70 ER 448) as authorities for the proposition that exposure to the loss of office is exposure to a penalty. 78 In Honeywood the plaintiff sought to discover whether a third party held a seat in parliament in trust for the defendant. Lord Hardwicke LC held the defendant ought not to discover because if he did, upon an application to the House of Commons, they would declare the seat void. 79 In Nelme the plaintiff's allegation was that the defendants constituted a partnership with a testator as notaries and he prayed for an account. The defendants responded that the testator had not taken out his certificate and any notary acting for a person not entitled to act as a notary was liable to be struck off the roll, hence they should not be compelled to answer as to the alleged partnership as it exposed them to the risk of being struck off the roll. Lord Eldon LC confirmed the decisions below that the defendants should not be required to answer. 80 In Scott a submission by the defendant that he was not bound to discover because the discovery would, or might, show that he was liable to penalties, was insufficient for failure to state a belief that he might be struck off the roll and disabled from practising as an attorney or solicitor. 81 The Technical and Further Education Commission Act 1990, s 22D(1)(c) provides for the reduction of a member of staff's salary or demotion to a lower position in the Government Service as a disciplinary action. A member of staff was defined in s 3(1) as a person employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the TAFE Commission Division of the Government Service. Under the Public Sector Employment and Management Act 2002, s 4A(1) the Government Service consists of those persons employed under Chapter 1A by the Government of New South Wales in the service of the Crown. Thus, as was conceded on behalf of Mr Valantine, correctly in my opinion, his demotion from head teacher to a teacher position did not constitute a loss of office. 82 Mr Valantine was demoted from head teacher to teacher. He suffered a loss of salary. And he suffered a reduction of rank, one of the matters recognised by Gibbs CJ as a penalty in Morris. 83 In Borland v NSW Deputy Coroner [2006] NSWSC 982, two police officers objected to answering questions on the ground that they were not protected from exposure to consequences such as the Commissioner of Police reducing their rank, or seniority, or deferring salary increments. It was conceded that these consequences constituted penalties for the purposes of the privilege. 84 In my view, Mr Valantine was exposed to penalties for the purposes of the privilege against such exposure. Does the privilege apply to the Tribunal's proceedings? 85 It was submitted that an order made under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1) did not prevent either the employer or an appellant from resisting the order for any number of reasons, including the claim of various privileges. It was also submitted that a challenge to the order did not automatically lead to the imposition of the penalty provision in s 44(2). 86 In Pyneboard at 356-357, Brennan J addressed the question whether the proper approach was to ask whether any privilege against exposure to penalties was to be implied in qualification of the obligation created by the relevant statute. 87 That is the approach the Commission submits should be taken in the instant circumstances. It is an approach that was rejected by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Daniels at 554 [16] and 557-558 [25] on the basis that it was inconsistent with the rule expressed in Potter v Minahan (1908) 7 CLR 277. As their Honours said at 553 [11], statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect, a rule the expression of which in the High Court could be traced to Potter. See, also, Pyneboard at 341, Sorby at 309, 311. 88 The Commission submitted that the proceedings before the Tribunal could not expose Mr Valantine to penalties since they had already been imposed and, in consequence, the privilege against exposure to penalties did not apply to the decision of Chairperson Oakman or the order of Senior Chairperson Lynch. 89 The penalty was imposed by the senior officer appointed by the Commission to deal with alleged breaches of discipline. It was not imposed by the Tribunal. The question arises whether the privilege should apply to proceedings before the Tribunal under which, in terms of the Government and Related Employees Appeal Tribunal Act 1980, s 48(2), the Tribunal may allow or disallow an appeal or make such other decision with respect to the appeal as it thinks fit. The Tribunal has, on one occasion, (Tania Sheldon v Managing Director of the NSW Technical and Further Education, appeal no 492 of 1995, 16 April 1997), dismissed an appeal from a decision to reduce the teacher's rank and decided that she should be dismissed. In other words, it imposed a greater penalty than that against the imposition of which the teacher had appealed. 90 The process by which a penalty is initially imposed under the Government and Related Employees Appeal Tribunal Act 1980 for a disciplinary breach is in the nature of an administrative proceeding. Oral evidence is not called and the senior officer acts upon such documentation as is put before that officer. 91 In contrast, the issues are ventilated before the Tribunal in the manner of curial proceedings. Those proceedings can result in penalties imposed below being overruled, confirmed or increased. The jeopardy that an appellant will suffer if required to produce documents that expose the appellant to a penalty is just as much present in the proceedings before the Tribunal as it is in proceedings in a courtroom. 92 In Calman v Commissioner of Police (1999) 167 ALR 91 at 98-99 [26]-[30], Gaudron ACJ, McHugh, Gummow, Kirby and Callinan JJ discussed the role of the Tribunal. They noted that various provisions of the Government and Related Employees Appeal Tribunal Act 1980 disclosed that the Tribunal was empowered to inquire into the merits of a disciplinary matter before it, at a formal hearing and in a manner that was distinct from the process adopted by the administrative decision-maker at first instance. They concluded that a disciplinary proceeding in the Tribunal was by the operation of s 48(2), in substance, a fresh exercise of administrative power and, in that sense, the "appeal" might be described as an administrative hearing de novo. 93 In entering upon that administrative hearing de novo, the Tribunal acts in a quasi-judicial capacity and, in my view, there is good reason why the privilege against exposure to penalties should apply to its powers to order discovery by an appellant. In Mr Valantine's case the privilege means that the decision of Chairperson Oakman and the order of Senior Chairperson Lynch should not have been made. 94 That is not to say that the Government and Related Employees Appeal Tribunal Act 1980, s 44(1) has no operation in disciplinary appeals, nor that the production of witness statements cannot be ordered under s 39 in such appeals. If at the close of an employer's case the appellant elects to go into evidence, it may be appropriate for the Tribunal to order the appellant to lodge the statements of witnesses who are intended to be called before the Tribunal and provide copies to the Commission. It may also be appropriate for the Tribunal then to order an appellant to lodge a written case and provide a copy to the Commission. And orders might be made under those provisions in promotion appeals that are usually by way of an informal hearing under s 35(1). Orders 95 I would allow the appeal, set aside the decision of Chairperson Oakman and the order of Senior Chairperson Lynch and order the Commission to pay the costs of the appeal. ********** 19/10/2007 - Error in citation - Paragraph(s) 46 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.