FEDERAL COURT OF AUSTRALIA

Knowles v Secretary of the Department of Veterans’ Affairs [2018] FCA 1213

ORDERS

THE COURT DECLARES THAT:

1.    Legal professional privilege attaches to each of the communications contained in:

(a)    The email from Mr Frank White of the Department of Veterans’ Affairs to Mr Norman Abrams of Moray & Agnew Lawyers sent on 24 March 2017 at 11.40 am (“email one”).

(b)    The email chain (comprising three emails) between Messrs White and Abrams, with the most recent email being from Mr White to Mr Abrams sent on 24 March 2017 at 4.48 pm, including all attachments (“email two”).

(c)    The email chain (comprising four emails) between Messrs White and Abrams, with the most recent email being from Mr White to Mr Abrams sent on 28 March 2017 at 5.32 pm, including all attachments (“email three”), with the exception of the table disclosing the hourly rates of solicitors of Moray & Agnew Lawyers.

(d)    The email from Mr White to Mr Abrams sent on 30 March 2017 at 5.05 pm including all attachments (“email four”).

(e)    The email from Mr White to Mr Abrams sent on 30 March 2017 at 5.07 pm including all attachments (“email five”).

(f)    The email from Mr White to Mr Abrams sent on 30 March 2017 at 5.08 pm including all attachments (“email six”).

(g)    The email from Mr White to Mr Abrams sent on 30 March 2017 at 5.12 pm including all attachments (“email seven”).

(h)    The email from Mr White to Mr Abrams sent on 30 March 2017 at 5.15 pm including all attachments (“email eight”).

(i)    The email from Mr White to Mr Abrams sent on 30 March 2017 at 5.13 pm including all attachments (“email nine”).

(j)    The email chain (comprising five emails) between Messrs White and Abrams, with the most recent email being from Mr White to Mr Abrams sent on 4 April 2017 at 2.18 pm, including all attachments (“email ten”).

(k)    The email chain (comprising five emails) between Messrs White and Abrams, with the most recent email being from Mr White to Mr Abrams sent on 4 April 2017 at 2.20 pm, including all attachments (“email eleven”).

(l)    The email chain (comprising five emails) between Messrs White and Abrams, with the most recent email being from Mr White to Abrams sent on 4 April 2017 at 2.20 pm, including all attachments (“email twelve”).

THE COURT ORDERS THAT:

2.    The applicant pay the respondent’s costs of the privilege claim.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

TRACEY J:

1    The applicant, Mr Kieran Knowles, seeks judicial review of a number of decisions of the Secretary of the Department of Veterans’ Affairs (“the Department”) under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

2    Among the decisions which he seeks to challenge is a decision by a delegate of the Secretary to refuse him access to some documents sought under Australian Privacy Principle 12 (“APP 12”) in Sch 1 of the Privacy Act 1988 (Cth) (“the Privacy Act”). A delegate of the Secretary had refused him access to 12 emails (and attachments) because they were said to be covered by legal professional privilege.

3    In the course of preparing for a hearing in this proceeding, the Secretary, pursuant to an order of the Court, filed and served documents that were relevant to the application. Among the documents filed were the 12 emails and attachments which comprised five volumes of material. In reliance on the privilege claim these documents were not served on Mr Knowles. Mr Knowles challenges the efficacy of this claim.

4    I considered that it was preferable to determine the privilege claim prior to hearing the substantive application. This was because there might be documents among those not served that were relevant to the other decisions which Mr Knowles seeks to challenge in this proceeding. The privilege claim was heard on 31 May 2018.

5    Prior to the hearing of the privilege claim Mr Knowles sought to file a further amended originating application which clarified the relief sought and specified the grounds on which he relied, including that the Secretary had erred by relying on legal professional privilege to refuse access. The parties agreed that consideration of the amendment application could await the determination of the privilege claim.

FACTUAL BACKGROUND

6    The Secretary relied upon three affidavits in support of his privilege claim: an affidavit of Mr Norman Lee Abrams sworn on 15 December 2017 and two affidavits of Mr Trent Babington affirmed on 30 November and 15 December 2017 respectively. Mr Abrams is a partner at Moray & Agnew Lawyers. Mr Babington is a legal adviser and the Director of Information Law within the Legal Services Branch of the Department. He was also the delegate who made the decision to refuse access to the documents. Mr Knowles relied upon his affidavit affirmed on 12 January 2018. The following background is drawn from these affidavits.

7    On 1 February 2017 Mr Knowles complained to the Australian Health Practitioner Regulation Authority (“AHPRA”) about the conduct of Dr Graeme Killer AO, the former Principal Medical Adviser of the Department. The relevant events occurred in 2011 in the course of Dr Killer’s role as an independent contractor engaged by the Commonwealth.

8    The Department became aware of that complaint on around 15 March 2017. To assist Dr Killer to respond to that complaint, the Department funded Moray & Agnew Lawyers to provide him with legal representation. Dr Killer became a client of Moray & Agnew Lawyers.

9    On 24 March 2017 Mr Frank White, the then Assistant Director of the Information Law Section of the Legal Service & Assurance Branch of the Department, contacted Mr Abrams about the provision of legal services to Dr Killer in relation to the complaint.

10    I interpolate that, at time of the hearing in this Court, Mr White was no longer engaged by the Department. He did not give evidence.

11    Mr Abrams, however, deposed that Mr White had told him that the intention was that the legal services, provided to Dr Killer, would be paid for by the Department. Moray and Agnew Lawyers was subsequently engaged to act for Dr Killer and finalise his response to AHPRA. The legal fees were billed to, and paid for, by the Department.

12    Mr Abrams deposed that the services which were provided by Moray & Agnew Lawyers to Dr Killer included reviewing documents to understand the complete context of the complaint to AHPRA, interviewing Dr Killer, drafting, and conferring with Dr Killer about, the submission to AHPRA, and finalising and sending the final response to AHPRA in relation to the notification made by Mr Knowles.

13    A few months later, on 23 June 2017, Mr Knowles made his APP 12 request to the Department. He requested access to all documents containing his personal information which had been disclosed by the Department to third parties between 1 March and 31 May 2017 (“the APP 12 request”).

14    In the course of considering this request, Mr Babington conducted searches of the Department’s computer system to identify any information falling within the terms of his request.

15    As a result of those searches Mr Babington identified documents contained on the Department’s computer drive. The documents were located within an electronic folder titled “AHPRA Cpt – Knowles & Killer”. Within that folder was a subfolder titled “AAT docs to Moray & Agnew”.

16    At that time, in July 2017 Mr Babington asked Mr Abrams to provide him with copies of any correspondence which he had received from the Department between 1 March and 31 May 2017 which contained Mr Knowles’s personal information. Mr Abrams sent him the 12 emails (with attachments) which were the emails which had earlier been sent to Mr Abrams by Mr White. Upon receipt Mr Babington forwarded each of those 12 emails (with attachments) to the Secretary’s legal representative, the Australian Government Solicitor.

17    Mr Babington also checked the 12 emails (and attachments) against the documents on the Department’s computer drive. He deposed as follows in his second affidavit at [23]:

After I obtained copies of the 12 emails (and their attachments) from Moray & Agnew, I was able to confirm that the copies of the documents in the folder “AHPRA Cpt – Knowles & Killer” on [the Department’s] shared drive were the same as the documents emailed to Moray & Agnew (that is, if Document X is attached to Email 1, Document X is also on the system as a standalone document). Copies of the documents are also retained by [the Department] in Microsoft Outlook. I have made enquiries and have not identified any physical copies of the emails and attachments, or the attachments in their original form as standalone documents. I am not aware that [the Department] holds the 12 emails and the attachments (or the original documents) in a physical form.

18    Mr Babington deposed that the Department’s computer drive was secure. It could only be accessed by authorised officers within the Legal Service & Assurance Branch. Each Microsoft Outlook staff account was secure and could only be accessed by the individual to whom the account has been allocated save for where access was required by an authorised person in accordance with departmental data security policies.

19    Mr Babington’s searches culminated in a decision made on 24 July 2017 by him in his capacity as a delegate of the Secretary. As already noted he refused access to the 12 emails, claiming legal professional privilege.

20    He relied upon APP 12.2(b)(i), which provides that an entity is not required to grant access to a document if it would be authorised to refuse access under the Freedom of Information Act 1982 (Cth) (“FOI Act”). Section 42 of the FOI Act in turn provides that a document is exempt from production “if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege”.

21    Mr Babington later identified other documents within the scope of Mr Knowles’s request which were subsequently released to him.

22    As already mentioned Mr Knowles relied on his affidavit of 12 January 2018. In this affidavit he deposed (at [14]) that Moray & Agnew Lawyers has “partially put documents from those provided to the client via his lawyer … on the record”. At [17] he referred to the fact that Moray & Agnew and Dr Killer had made submissions to AHPRA. A copy of that submission was not, however, provided to the Court.

The documents

23    The documents in issue are 12 emails (and attachments) sent by Mr White to Mr Abrams.

24    The copies of the documents which were filed with the Court were copies of those emails which had most recently been forwarded to the Australian Government Solicitor by Mr Babington. As noted, prior to that, each email had been forwarded from Mr Abrams to Mr Babington. In describing each of the 12 emails below, for clarity, I have confined the references to the parts of the emails which pertain to the communications between the Department and Moray & Agnew Lawyers. Those are the parts of the emails on which the Secretary’s claim of legal professional privilege focused and to which his submissions were directed.

25    Email one is an email from Mr White to Mr Abrams sent on 24 March 2017 at 11.40 am requesting an estimate of legal fees and attaching a copy of the notification made by Mr Knowles to AHPRA about Dr Killer.

26    In relation to email one, Mr Abrams deposed (at [10]-[11]) that he understood Mr White to have sent the notification so that he (Mr Abrams) could understand the claim in respect of which he was being asked to provide legal services to Dr Killer. Mr White had foreshadowed sending the notification in a telephone call with Mr Abrams earlier that day. Mr Abrams understood Mr White to have requested a fee estimate so that he could obtain the necessary instruction to retain Moray & Agnew Lawyers to provide legal assistance to Dr Killer.

27    Email two is an email chain (comprising three emails) between Messrs White and Abrams about the engagement of Moray & Agnew Lawyers to advise Dr Killer and an extension of the time to respond to AHPRA. The most recent email is from Mr White to Mr Abrams and was sent on 24 March 2017 at 4.48 pm. Attached is another email chain (comprising two emails) about the extension of time.

28    Mr Abrams deposed (at [12]) that email two followed from email one. In it, he had responded briefly to Mr White’s request for an estimate, and Mr White had given him with an update on the AHPRA proceeding. Mr Abrams’s evidence was that the purpose of his email was to let Mr White know he could accept the engagement and that he would get back to him after materials had been reviewed. He understood Mr White’s email to him to be an update on how the proceeding was going.

29    Email three is an email chain (comprising four emails) between Messrs White and Abrams about legal fees. The most recent email is from Mr White to Mr Abrams sent on 28 March 2017 at 5.32 pm. Attached are copies of three documents which Mr White provided to Mr Abrams to assist his consideration the complaint.

30    Mr Abrams said (at [13]) that email three followed on from emails one and two. In it, he provided Mr White with an estimate of legal fees for acting. Mr White provided him with some initial documents to assist him in considering the complaint lodged with AHPRA. Mr Abrams read those documents at the time in order to understand the basis for the AHPRA notification and the claim against Dr Killer. They were, he said, critical to an understanding of the complaint.

31    Emails four to nine are emails from Mr White to Mr Abrams. Mr White attached copies of documents for Moray & Agnew Lawyers to consider in advising Dr Killer. These documents were supplied in response to a request by Mr Abrams for documents to enable him to inform himself about the complaint against Dr Killer. The emails and the documents attached were:

    Email four which was sent on 30 March 2017 at 5.05 pm and attached about 32 emails and four documents.

    Email five which was sent on 30 March 2017 at 5.07 pm and attached about 100 emails and 17 documents.

    Email six which was sent on 30 March 2017 at 5.08 pm and attached about 74 emails and 31 documents.

    Email seven which was sent on 30 March 2017 at 5.12 pm and attached about 100 emails and 21 documents.

    Email eight which was sent on 30 March 2017 at 5.15 pm and attached about 118 emails and 14 documents.

    Email nine which was sent on 30 March 2017 at 5.13 pm and attached about 20 emails and 17 documents.

32    Mr Abrams deposed (at [14]-[17]) that the documents attached to emails four to nine were documents which he understood that Mr White believed were relevant to the provision of the approved legal assistance by Mr Abrams and Moray & Agnew Lawyers to Dr Killer in relation to the AHPRA complaint. He said that the emails and documents were forwarded to him because, on 29 March 2017, he had asked Mr White to send him the large body of documents which the Department held in order that Moray & Agnew Lawyers could review them. His evidence was that he considered this approach was appropriate because:

    The firm could more efficiently go through the documents than the Department.

    The firm was better placed objectively to assess the degree of relevance of each of the documents in the context of the complaint as a whole.

    In providing legal advice and assistance or in defending any claim, complaint or litigation, it is important, in his opinion, for the lawyers to have not only deep and wide knowledge of what occurred, but a complete understanding of the context that lead to the need for legal advice or litigation. At the outset in a new set of instructions, a lawyer often does not know what is immediately relevant or what might become truly critical in terms of evidence or relevance until a matter develops and proceedings progress. Having deep and broad knowledge of the dispute and the context in which it arose puts a lawyer in the best position to provide the most effective and sound legal advice.

33    Mr Abrams deposed that the documents attached to these emails were reviewed by his team and, where necessary, by him personally. They used the documents to inform themselves about the complaint to AHPRA about Dr Killer. The documents, he said, allowed them to deliberate on strategy and advise Dr Killer.

34    Email 10 is an email chain (comprising five emails) between Mr White and Mr Abrams. The most recent email was sent on 4 April 2017 at 2.18 pm. In the emails, Mr Abrams asks for documents and Mr White provides some of them in response to that request. Attached are about 37 emails and 21 documents.

35    Mr Abrams deposed (at [18]) that email ten followed on from emails four to nine. In it he requested documents relating to the subject of Mr Knowles’s dispute in the Administrative Appeals Tribunal (“the AAT”), and Mr White provided some of those documents. He considered those documents to be critical in formulating how Moray & Agnew Lawyers would structure of the formal response to AHPRA. Mr Abrams, with his team, considered the documents which Mr White provided for that purpose.

36    Emails 11 and 12 reflect a single email from Mr White to Mr Abrahams attaching additional documents. Mr Abrams deposed (at [19]) that, when these documents were originally sent to him by Mr White, they were attached to a single email. However, when he sought to forward copies of correspondence to Mr Babington in July 2017 he received a “bounce-back” email due to the size of the attachments. He then split the attachments across two emails:

    Email eleven is an email chain (comprising five emails) between Messrs White and Abrams, with the most recent email being from Mr White to Mr Abrams sent on 4 April 2017 at 2.20 pm. Five emails and two documents are attached.

    Email twelve is an email chain (comprising five emails) between Messrs White and Abrams, with the most recent email being from Mr White to Abrams sent on 4 April 2017 at 2.20 pm. About 33 emails and 17 documents are attached.

37    Mr Abrams deposed that his purpose in seeking the documents attached to emails eleven and twelve was the same as that in relation to email ten, namely that he considered them to be critical in formulating how to structure the response to AHPRA.

SUBMISSIONS

The Secretary’s submissions

38    The Secretary acknowledged that, in practical terms, the resolution of the claim of legal professional privilege was likely to be dispositive of Mr Knowles’s challenge to the delegate’s decision to refuse access to the documents. If the delegate were held to have acted upon a wrong understanding of principle (for example, in refusing access on the basis of an erroneous claim of privilege), then it was reasonably likely that a jurisdictional error could be found. That, however, was a matter which the Court did not yet need to consider. Rather, this would be a matter for the parties to consider in light of the Court’s determination on privilege and prior to the final hearing.

39    The Secretary submitted that the documents were privileged because they were brought into existence for the dominant purpose of Moray & Agnew Lawyers providing legal advice to Dr Killer. Because the issue of privilege arose in circumstances other than, and prior to, the adducing of evidence, it was the common law, and not the Evidence Act 1995 (Cth), which was applicable: cf Commonwealth v Dutton (2000) 102 FCR 168 at 169; [2000] FCA 1466 at [2] (Wilcox J); Commissioner of Taxation v Deveraux Holdings Pty Ltd (2007) 240 ALR 128 at 130; [2007] FCA 821 at [7] (Gyles J).

40    The Secretary acknowledged that the original versions of some of the documents which were sent as email attachments may not be privileged. That, however, did not preclude the copies which were sent to Moray & Agnew Lawyers from being privileged.

41    Legal professional privilege, he submitted, can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd [2015] FCA 282 at [18] (Yates J); Lane v Admedus Regen Pty Limited [2016] FCA 864 at [21] (McKerracher J); and Barnes v Commissioner of Taxation (Cth) (2007) 242 ALR 601 at 602-604; [2007] FCAFC 88 at [5] and [11] (Tamberlin, Stone and Siopis JJ).

42    A copy document can be privileged even if the original information which was copied is in the public domain. As Greenwood J explained (at 312 [29]) in Comcare v Foster (2006) 150 FCR 301; [2006] FCA 6:

All of that material, gathered together by the lawyers for the dominant purpose of providing legal advice to the corporate client, attracts privilege from disclosure on the ground of legal professional privilege notwithstanding that the material gathered for the purpose of critical assessment in forming views about components of the legal questions, is drawn from information on the public record. The client enjoys an immunity from disclosure of the printed versions of electronic material or copies of documents gathered from public databases and registers because disclosure of those documents would reveal confidential communications between the lawyer and the client concerning the seeking and giving of legal advice on the various issues comprehended by the legal questions.

(Emphasis in the original.)

43    The Secretary submitted that the dominant purpose test was satisfied in relation to each email and its attachments. At common law, legal professional privilege attaches to communications brought into existence for the dominant purpose of obtaining or providing legal advice or legal services relating to actual or anticipated legal proceedings: see Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 123; [1999] HCA 67; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 552; [2002] HCA 49 at [9] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Whether a communication or document satisfies the dominant purpose test is a question of fact to be determined objectively “having regard the evidence, the nature of the document and the parties’ submissions”: AWB Ltd v Cole (2006) 152 FCR 382 at 412; [2006] FCA 571 at [110] (Young J).

44    The Secretary relied upon the principles that pertain to communications between a lawyer or client and a third party which are expounded in Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357; [2004] FCAFC 122. It is well-established, he contended, that a communication by a third party to a client’s lawyer can attract privilege so long as the dominant purpose test is met: Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 at [38] (Beach J).

45    He submitted that, for the purposes of this claim, the client who was receiving legal advice was Dr Killer and the lawyers who were providing it were Moray & Agnew Lawyers. The existence of a lawyer-client relationship between those parties was supported by Mr Abrams’s affidavit where he described the legal services provided to Dr Killer and Mr Babington’s first affidavit where he deposed that the Department funded Dr Killer’s legal representation.

46    All 12 emails passed between an officer of the Department (Mr White) and a lawyer of Moray & Agnew Lawyers (Mr Abrams). All the emails (and their attachments) were sent for the sole purpose (let alone the dominant purpose) of Dr Killer obtaining legal advice and services from Moray & Agnew Lawyers in relation to an AHPRA complaint made by Mr Knowles about Dr Killer’s conduct. The documents were sent to, and requested by, a lawyer so that he could advise his client about a professional claim made against him.

47    The Secretary submitted that, if this material were held not to be privileged, it would risk disclosure of material briefed to lawyers for the purpose of seeking their advice, in circumstances where the lawyer has asked for all relevant material in order to assess the case. The evidence established that Mr Abrams had made such a request.

Mr Knowles’s submissions

48    Mr Knowles submitted that the Secretary had failed to establish that the documents were privileged.

49    He submitted that the documents he had sought were those held by the Secretary, not copies held by Moray & Agnew Lawyers. He had requested access to copies of personal information held by the Department, which had been disclosed to third parties during the relevant period, not copies of the actual communications involved or copies of those disclosures held by the third parties. He referred to Mr Babington’s evidence (see [17] above) that, in conducting searches, he had located the original documents on the Department’s computer system. Rather than providing access to the “non-privileged originals” held by the Department in which he was interested, the Department had asked Moray & Agnew Lawyers to send copies back to the Department. Mr Knowles had then been refused access to those documents. It was artificial, he said, for the Secretary to treat his request as encompassing the documents which were held by Moray & Agnew Lawyers. He submitted that this constituted an abuse as it implied that the Department had deliberately taken certain actions so as to be able to claim legal professional privilege. This theory was supported, he said, by Mr Babington’s evidence that there were no physical copies of the originals.

50    He asserted that the provision of the documents to Moray & Agnew Lawyers was a “sham arrangement”. In oral submissions he advanced an argument that the Department had claimed privilege for a colourable purpose, namely to obscure the fact that it had provided information to Moray & Agnew Lawyers in breach of an AAT confidentiality order which required that Mr Knowles’s identity be suppressed in relation to a particular proceeding. In such circumstances, he said, privilege would not attach to the Department’s communications.

51    Mr Knowles disputed the claim that the documents met the dominant purpose test. He stated that, among the documents, were details, including of his history with the Department, which had no relevance to the statutory questions AHPRA was required to consider as part of the notification process. He also submitted that a fee estimate prepared by a legal firm would not meet the dominant purpose test unless it contained detailed information which recorded the proposed legal advice: cf Hodgson v Amcor Ltd v Barnes (No 2) [2011] VSC 204.

52    Mr Knowles also argued that Pratt Holdings was not applicable where the Department had initiated the provision of documents without a specific direction from either Moray & Agnew Lawyers or Dr Killer. He emphasised that there was no direct evidence about the emails. Mr White, the person who had sent the emails to Moray & Agnew Lawyers, had not provided an affidavit. He referred to authorities which provided that inferences as to privilege should not readily be drawn in the absence of direct evidence: see, eg, Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [7], [32] and [35] (Brereton J). He said that the Department had made a global claim and that, instead, specific evidence was required in relation to each communication: see Hutchins v Cap Coast Telecoms Pty Ltd (in liq), in the matter of Cap Coast Telecoms Pty Ltd (in liq) ACN 128 716 030 [2015] FCA 945 at [12] (Gleeson J).

53    He also submitted that any privilege which inhered in the copies had been waived because the Secretary and Moray & Agnew Lawyers had used them inconsistently with the maintenance of privilege by “voluntarily deploying them to obtain advantage, with the resultant loss of confidentiality”. Privilege had been waived in relation to at least some of the documents because they had been provided to AHPRA as part of a submission to that regulator. Privilege had also been waived as a result of the detail used to identify the documents, including in the index filed with the Court. He also submitted that it was arguable that waiver had occurred by Moray & Agnew Lawyers sending the emails back to the Department as that communication was not for a privileged purpose.

54    He also referred to, and relied upon, McHugh J’s statement in Propend Finance at 553-554 that:

if the client is required to produce an original document which has been the subject of a communication between a lawyer and the client, an inference can sometimes be drawn as to why the document was in the lawyer’s custody. But since the original document was not created solely for the purpose of obtaining legal advice or assistance, it would be stretching legal professional privilege too far to cloak the document with privilege merely because at some stage it was the subject of legal advice or assistance.

The Secretary’s submissions in reply

55    The Secretary first dealt with Mr Knowles’s objection that that the Secretary had misunderstood the terms of his request for documents and had thereby perpetrated some sort of abuse. The Secretary submitted that, on the face of his APP 12 application, Mr Knowles had sought access to his personal information that had been provided by the Department to a former employee’s legal representatives. Although it is a matter for the final hearing, the Secretary understood this to mean personal information in the form disclosed to Moray & Agnew Lawyers. That form was emails and attachments to those emails. If there was any misunderstanding it was unintentional and not a ground for the allegation of abuse. In any event, neither construction of the terms of Mr Knowles’s request for access entitled him to the documents which he seeks.

56    Mr Babington had deposed in his second affidavit that he was unaware that the Department held the emails otherwise than in the form provided to him by Moray & Agnew Lawyers. If the delegate had found departmental copies of those emails the legal analysis would remain the same. The emails would have been produced for the dominant purpose of Moray & Agnew Lawyers providing legal advice. Any copy documents attached to those emails, being records disclosed to Moray & Agnew Lawyers, would have been created for the requisite dominant purpose.

57    The Secretary also addressed Mr Knowles’s assertion that the Department had made the privilege claim in order to avoid scrutiny of its alleged breach of orders made by the AAT. He argued that there was insufficient evidence for such a claim and, upon inspecting the documents, the Court would be able to conclude that there was no deliberate disclosure of any such documents (if indeed there had been). Certainly, such a purpose could not be attributed to Dr Killer.

58    He noted that Mr Knowles appeared to contend that he was not seeking the records that were provided to Moray & Agnew Lawyers. Rather he was seeking the originals that the Department held. The Secretary submitted that legal professional privilege cannot be circumvented in this way. This would be like a party to civil litigation seeking discovery not of communications between their opponent and their opponent’s lawyers but rather asking their opponent to produce “the original version of all documents that were copied and provided to your lawyers for the purpose of your lawyers giving you advice”. Disclosing a category of original documents limited by reference to their subsequent provision to lawyers for the purpose of legal advice being provided would necessarily result in the disclosure of the substance of the confidential communications with those lawyers.

59    Mr Knowles’s claim that “direct evidence” (eg, from Mr White) was required to prove that the documents were privileged was contrary to authority. Legal professional privilege can, for example, be established from a reading of the contents of the documents the subject of the communication: see, eg, Carey v Korda (2012) 45 WAR 181 at 195; [2012] WASCA 228 at [62] (Murphy JA, Martin CJ and Newnes JA agreeing); Re Southland Coal Pty Ltd (receivers and managers appt’d) (in liq) (2006) 203 FLR 1 at 11; [2006] NSWSC 899 at [28] (Austin J); Zentai v O’Connor (No 2) (2010) 183 FCR 180 at 202; [2010] FCA 252 at [91] (McKerracher J). In any event, Mr Abrams gave direct evidence as the lawyer involved. There was no good reason for the Court not to accept his evidence.

60    The Secretary contested Mr Knowles’s claim that the documents were provided to Moray & Agnew Lawyers as a “sham contrivance” to “cast dispersions” against him. Support for the claim was not evident on the face of the emails and nor could it be inferred from the circumstances. Where a complaint is made against a person in relation to his or her previous work, it is unsurprising that documents are provided to enable that person to receive legal advice. The innocent explanation should, he submitted, be accepted.

61    Finally, the Secretary dealt with Mr Knowles’s complaint that any privilege had been waived because the documents had been deployed by Dr Killer and Moray & Agnew Lawyers. There was, he said, no evidence of this and, even if the information was used by them, it supported the conclusion that the material was provided for the claimed dominant purpose. While noting that it was not a matter for the Secretary, he accepted that it was possible that Dr Killer and Moray & Agnew Lawyers may have disclosed documents to Mr Knowles or AHPRA in the context of responding to the AHPRA complaint. Such a disclosure would not, however, result in waiver of the privilege over the emails and attachments sent by the Department. There was, he submitted, no unfairness or inconsistency in the maintenance of privilege over the emails provided by the Department to Moray & Agnew Lawyers: see Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66. Nor had privilege been waived merely by the filing of an index with the Court. Such an action was not inconsistent with the maintenance of privilege.

CONSIDERATION

62    The documents the subject of the privilege claim are 12 email “chains”. Each chain begins with an email from the Department to the Australian Government Solicitor. Each chain also includes emails between Mr White of the Department and Mr Abrams of White & Agnew Lawyers. Each email chain also contains various attachments. It is conceded by the Secretary that each attachment is a copy of another document. In some instances the attachments are copies of other emails.

63    It is appropriate to have regard to the common law when considering legal professional privilege in the context of s 42 of the FOI Act: see Bennett v Chief Executive Officer of the Australian Customs Service (2003) 77 ALD 375 at 380; [2003] FCA 53 at [20] (Madgwick J). The common law is also apt to apply when the question is whether the Court should allow inspection of a document rather than whether it should be admitted into evidence: see Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44 at 52; [2000] FCA 1819 at [41] (Lindgren J).

64    In Pratt Holdings the Full Court held that legal advice privilege is capable of extending to communications authored by a third party who was not an agent of the client. The Full Court held that a report, prepared by an accounting firm at the request of a corporation, which was provided by the firm to the corporation, and which the corporation then forwarded to its lawyers for advice, was privileged. The Court did not consider that the accounting firm was an agent of the client. At 367-368 [41] Finn J said that:

To deny that a third party is an agent in such circumstances does not, though, provide a sufficient or principled reason for denying privilege to the documentary communication (or contents) it has authored. The important consideration in my view is not the nature of the third party’s legal relationship with the party that engaged it but, rather, the nature of the function it performed for that party. If that function was to enable the principal to make the communication necessary to obtain legal advice it required, I can see no reason for withholding the privilege from the documentary communication authored by the third party. That party has been so implicated in the communication made by the client to its legal adviser as to bring its work product within the rationale of legal advice privilege.

(Emphasis added.)

65    At 386 [105] Stone J stated:

The coherent rationale for legal professional privilege developed by the High Court does not lend itself to artificial distinction between situations where that expert assistance is provided by an agent or alter ego of the client and where it is provided by a third party. Nor, in my view, should the availability of privilege depend on whether the expert opinion is delivered to the lawyer directly by the expert or by the client. Provided that the dominant purpose requirement is met I see no reason why privilege should not extend to the communication by the expert to the client. This approach is consistent with the High Court’s ruling in Daniels (see [84]) that legal professional privilege protects communications and therefore prevents the disclosure of information or documents that would reveal communications protected by the doctrine.

(Emphasis added.)

66    Justice Merkel agreed with both of the other judges’ reasons: see at 370 [52].

67    In Asahi Holdings Beach J (at [38]) summarised the principles arising from Pratt Holdings as follows:

… a communication made by a third party adviser to a client’s lawyer if made for the requisite dominant purpose of the client obtaining legal advice from the lawyer will be privileged. Direct evidence of purpose can come from the third party adviser, the lawyer or the client. The purpose may also be readily inferred given the directness of the communication from the third party adviser to the client’s lawyer. Further, it is not necessary to ask whether the third party adviser was acting as the agent of the client, including in making the communication to the client’s lawyer. The absence of such an agency does not deny the existence of the privilege attaching to the communication, although its presence may fortify it. In terms of the third party adviser’s status, the important characterisation is “not the nature of the third party’s legal relationship with the party that engaged it but, rather, the nature of the function it performed for that party” (Pratt at [41]).

68    The documents in issue in this proceeding (the 12 emails and their attachments) were provided by the Department (a third party) to Mr Abrams (the lawyer) to facilitate the provision of legal advice from that lawyer to Dr Killer (the client). This does not mean that privilege does not attach to the contents of the documents, provided that the dominant purpose test is met. What is important is that the function of the communication in each instance enabled the client to obtain legal services.

69    Whether the 12 email chains and attachments (or parts thereof) are privileged will depend upon whether they were created for the dominant purpose of obtaining legal advice. This, as the Secretary has submitted, is a question of fact to be determined objectively.

70    It may be accepted that, where a copy of a document is created for the dominant purpose of seeking legal advice or assistance, that copy will attract legal professional privilege. This may be so even if the original document was not created for such a purpose.

71    In Propend Finance the majority of the High Court concluded that legal professional privilege may attach to a copy of a document provided to a lawyer if the copy was made for the purpose of obtaining legal advice or for use in legal proceedings. At 508-509, Brennan CJ said that:

If privilege were denied to a copy of an unprivileged document when the copy is produced solely for the purpose of seeking advice from a solicitor or counsel or for the purpose of use in pending, intended or reasonably apprehended litigation, there would be a risk that the confidentiality of solicitor-client communications would be breached. The way would be open for the execution of search warrants by the emptying out of, and sifting through, solicitors’ files and counsel’s briefs. That would undermine the adversary system under which most litigation is conducted.

Authority and principle thus combine to establish that, prima facie, copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended. …

(Citations omitted.)

72    I should interpolate here that the sole purpose test, to which his Honour referred in his reasons, no longer applies. It has been displaced by the dominant purpose test: see Esso Australia Resources Limited.

73    At 543-544 Gaudron J stated:

There is a … difficulty with the view that privilege does not attach to a copy document unless the original is also privileged, namely, that it pays insufficient regard to the consideration that legal professional privilege does not protect documents, as such, but protects communications between lawyer and client. … [A] document which is brought into existence solely for the purpose of obtaining legal advice or solely for use in litigation and which is then provided to a lawyer for that purpose is, itself, a communication with the lawyer and, in accordance with the decision of this Court in Grant v Downs [(1976) 135 CLR 674 at 688, 690], a privileged communication. Equally, a copy of a document made solely for the purpose of obtaining legal advice or solely for use in legal proceedings is, when provided to a lawyer for that purpose, a communication to the lawyer. Save that it is likely to be more accurate, the provision of a copy document in those circumstances is not different from the oral communication, in the same circumstances, of the material contained in the original document. And the latter is unequivocally a privileged communication.

The consideration that the provision to a lawyer of a copy document is, itself, a communication different only in form from the oral communication of the contents of the original document leads me to conclude that privilege attaches to a copy document which is provided to a lawyer if the copy was made solely for the purpose of obtaining legal advice or solely for use in legal proceedings.

(Emphasis added. Citations omitted.)

74    Justice McHugh dealt with the issue at 552-553. His Honour said that:

No doubt it seems contrary to commonsense that the law should give privilege to the copy of a document when it does not give it to the original. But in this area of the law, as in other areas of law and life, commonsense turns out to be a misleading guide. This is because legal professional privilege turns on purpose, and no argument is needed to show that the purpose of a client or lawyer in making a copy document may be very different from the purpose of the person who created the original.

To concentrate on the similarity between the original and the copy or on how the copy came to be made is to miss the whole point of legal professional privilege. The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client’s affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant.

(Emphasis added.)

75    Justice Gummow (at 571-572) identified the relevant questions as: “whether, having regard to the circumstances in which the copy document was brought into existence, it is to be treated as a communication, or, with other oral or written material, an element in a communication, concerning contemplated or pending litigation or made to obtain or given legal advice.”

76    Justice Kirby at (587) said that: “the Full Federal Court was right to conclude that legal professional privilege may attach to the copies of communications provided to a lawyer for the sole purpose of advice or use in actual or apprehended legal proceedings.”

77    It is, therefore, well established that the privilege can protect disclosure of copy documents, provided that they are created for the relevant purpose.

78    In Barnes v Commissioner of Taxation (Cth) (2007) 242 ALR 601 at 603; [2007] FCAFC 88 at [11] Tamberlin, Stone and Siopis JJ dealt with privilege attaching to copy documents and to the originals of those copies. Their Honours said that, “[t]o attract privilege … it is necessary to show that the copy was created for the dominant purpose of seeking legal advice or assistance” (emphasis in the original).

79    If a copy is privileged, this may have the effect that an original, not created for the dominant purpose of seeking legal advice, also becomes privileged from when the copy was taken. The Full Court continued (at 603-604 [11]):

The consequence of this may be that an original document which is not created for the dominant purpose of seeking legal advice and assistance, and thus was not privileged, may become privileged if a copy of it is created for that purpose.

80    That is what has occurred in the present case. The originals of all of the documents sought by Mr Knowles are held on departmental files. The evidence establishes that the only reason that electronic copies were transferred from the Department to Moray & Agnew Lawyers as attachments to the emails was for the purpose of the solicitors at that firm providing legal advice to Dr Killer. The dominant purpose test, on the evidence, has, in my view, been satisfied.

81    I am conscious that Mr Knowles asserts that his claim is for access, not to the copies, but to the originals held by the Department. The difficulty which he confronts, however, is that an unprivileged original may become privileged if copies are taken for a protected purpose. The originals of the copies in this case attract privilege even if they did not do so before copies were made and sent to the solicitors.

82    The evidence also establishes the emails themselves were, subject to one exception, sent for that same dominant purpose.

83    The exception arises in relation to the part of email three which contains the fee estimate from Mr Abrams. There is authority that the components of a costs agreement which do not disclose the nature or content of instructions or advice to be provided will not be privileged: see Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44 at 52-53; [2000] FCA 1819 at [46]-[49] (Lindgren J). By analogy I consider that the part of the fee estimate email constituted by the table of the hourly rates of solicitors of Moray & Agnew Lawyers is not privileged: cf Bennett v Chief Executive Officer of the Australian Customs Service (2003) 77 ALD 375 at 388; [2003] FCA 53 at [45]-[46] (Madgwick J). The other parts of that email, in my opinion, contain sufficient information about the proposed legal advice and strategy to attract legal professional privilege.

84    I do not consider that the filing of the index of documents in the Court has led to privilege being waived. The substance of the privileged communications has not been disclosed by that index. Nor do I consider that the provision of the emails from Mr Abrams to Mr Babington, a legal adviser and Director of Information Law within the Legal Services Branch of the Department, waived the privilege in circumstances where those emails were sent, originally, to Mr Abrams from the then-Assistant Director (Mr White) of that same Branch in the Department. Lastly, there is insufficient evidence to support Mr Knowles’s assertions that privilege has been waived by the making of a submission to AHPRA by Dr Killer or Moray & Agnew Lawyers or by the provision of any other documents or information to AHPRA or to him.

DISPOSITION

85    The Secretary’s claim for privilege should be upheld, subject to the exception of the table of solicitors’ rates appearing in email three. It will be declared that the privilege attaches to each of the communications to which the claim relates.

Associate:

Dated:    15 August 2018