FEDERAL COURT OF AUSTRALIA

Griffiths v Rose [2010] FCA 964

THE COURT ORDERS THAT:

1.    The respondents are relieved from producing the documents listed in Schedule 1 to these reasons sought by the applicant in its Notice to Produce dated 29 May 2010 on the basis that those documents are the subject of legal professional privilege.

2.    The applicant is to pay the respondents’ costs of and associated with the Notice to Produce dated 29 May 2010 and the interlocutory hearing on 30 August 2010.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    In this proceeding the applicant seeks judicial review of the first respondent’s decision of 29 July 2010 that the applicant had breached the Australian Public Service Code of Conduct (Breach Decision) and the second respondent’s decision of 18 March 2010, to terminate the applicant’s employment (Termination Decision). The applicant had been a SES Band 1 employee of the Commonwealth Department of Resources, Energy and Tourism (Department) since 16 December 2008.

2    This interlocutory judgment concerns the respondents’ refusal to comply with the applicant’s notice to produce dated 29 May 2010. The respondents have refused to produce certain documents (the disputed documents) that fall within the notice to produce on the ground that the communications in the documents are protected by legal professional privilege. The respondents relied on the affidavit evidence of: the first respondent, Jo-Ann Rose, Chief Financial Officer and Head of the Corporate Services Division in the Department; the second respondent, Mr Ken Pettifer, an employee of the Department of Innovation, Industry, Science and Research and Mr Damien Patrick O’Donovan, a solicitor employed by the Australian Government Solicitor. The disputed documents are listed in Schedule 1 to these reasons.

3    Broadly speaking the disputed documents are: documents generated by the respondents for comment by their legal advisers; draft documents generated by the respondents’ legal advisers for consideration by the respondents; documents and copies of documents sent to the respondents’ legal advisers by or on behalf of the applicant; and advices provided by the respondents’ legal advisers together with correspondence (generally by email) in relation to those documents.

4    Legal professional privilege attaches to communications whether oral or in writing made for the dominant purpose of obtaining or giving legal advice or assistance, or for the dominant purpose of use in legal proceedings; Esso Australia Resources Limited v Federal Commissioner of Taxation (1999) 201 CLR 49. In this case the relevant communications are all in writing and, for convenience, I shall refer to the documents in which the communications are to be found.

5    It is not necessary to describe in detail the evidence of all three deponents. It is sufficient to note that, except where specifically indicated, all three base their evidence on their direct knowledge and their review of the disputed documents. On the basis of their evidence and my own review of the documents, I am satisfied that the disputed documents, were created for the dominant purpose of obtaining or giving legal advice or assistance, or for the dominant purpose of use in legal proceedings. This conclusion also applies to those copies that fall within the category generally known as “Propend” documents: Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501.

6    While the applicant does not challenge this conclusion, he does not accept that the documents are privileged. He submits that the documents are not, and never have been, privileged because they have never had the requisite confidentiality. Senior counsel for the applicant, Mr M I Neil stressed that the submission was not that privilege has been waived. A claim of waiver is premised on the privilege having existed but having been lost whereas the applicant’s claim was that privilege in the disputed documents had never existed.

7    The applicant’s claim is based on the proposition that natural justice or procedural fairness requires an administrative decision maker to make available to the person affected by the decision, adverse information that is credible, relevant and significant to the decision to be made”. The formulation comes from the reasons of Brennan J in Kioa v West (1985) 159 CLR 550 at 628-629. The applicant submits that the natural justice imperative is such that it is sufficient to prevent the confidentiality which is inherent in any claim of legal professional privilege arising.

8    A number of responses may be made to this claim. Firstly, it ignores the fact that Brennan J in Kioa recognised that problems of confidentiality may affect the extent to which the principle should apply. His Honour, having referred to Lord Diplock’s caution in Bushell v Environment Secretary [1981] AC at 97 about over judicialising administrative enquiries, said:

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.

[Emphasis added]

9    Secondly, Brennan J was referring to adverse information and not to the decisionmaker’s thought processes or analyses of legal principle. This distinction was recognised by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, albeit that the High Court was speaking of the meaning of “information” in a statutory context, namely s 428 of the Migration Act (Cth) 1958.

10    In their joint judgment, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said, at [18]:

[I]f the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information".

does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

11    In my view when Brennan J referred to ‘information’ in Kioa he was using it in the same sense as it is used in s 428 and therefore the High Court’s reasoning in SZBYR equally applies. A very similar argument to that put by the applicant here was put to Edmonds J in New South Wales Council for Civil Liberties Inc v Classifications Review Board (2006) 236 ALR 313. One issue was whether the duty to accord procedural fairness precluded the creation of privilege which otherwise attach to documents that were relevant to the judicial review application. Edmonds J was not persuaded. His Honour said, at 318:

I am not persuaded that some overarching consideration of procedural fairness which, it is alleged, gives rise to an obligation of the review board to disclose the relevant documents to the applicant, a proposition itself attended with considerable doubt, means that privilege in the documents did not arise.

12    While his Honour was concerned with the position of a statutory board (the Classification Review Board) which was required by its statute to operate independently of the rest of the executive government, in my view his conclusion that the applicant before him was trying to carve out an unwarranted exception to the decision of the High Court in Waterford v Commonwealth of Australia (1987) 163 CLR 54, is equally applicable here. Counsel for the applicant admitted that he was not able to cite any authority for the overarching proposition which he advanced.

13    The implication of such a proposition is so extraordinary that in the absence of binding authority it cannot be accepted. It would mean that, except perhaps in the case of the Minister (an exception conceded by the applicant) legal professional privilege would not attach to any communication between an administrative decision maker and his or her legal advisers, if that communication could be credible, relevant or significant to the making of the decision. Such a proposition elevates natural justice or procedural fairness into a rigid rule rather than principle, the dictates of which are heavily dependent on particular circumstances. As Mason J observed in Kioa at 585, “the expression ‘procedural fairness’ more aptly covers the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”.

14    The applicant, as a secondary submission, raised the possibility of there being information in the disputed documents which was not privileged. I have reviewed the disputed documents and I am satisfied that this is not the case. For these reasons the orders will be that the respondents are not required to produce the documents listed in Schedule 1 and that the applicant is to pay the respondent’s costs of and associated with the Notice to Produce dated 29 May 2010 and this hearing.

Associate:

Dated:    9 September 2010

SCHEDULE A

Legal professional privilege documents

List A – Breach decision

Rose & Ors ats Griffiths – Federal Court proceedings ACD 9 of 2010

Legal professional privilege documents

List B – Sanction decision

Rose & Ors ats Griffiths – Federal Court proceedings ACD 9 of 2010