Federal Court of Australia

Alpert v Secretary, Department of Defence [2022] FCA 54

ORDERS

THE COURT FINDS THAT:

1.    The first respondent has acted consistently with the maintenance of a claim for legal professional privilege over document T10.1.

2.    Document T10.1 is the subject of a valid claim for legal professional privilege, or alternatively, any privilege has not been waived.

THE COURT ORDERS THAT:

1.    The Supplementary Notice of appeal from a tribunal filed by the applicant on 18 September 2020 be dismissed.

2.    The Notice of Objection to Competency of the Supplementary Notice of appeal from a tribunal filed by the first respondent on 25 September 2020 be upheld.

3.    The application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review the decision of the second respondent that document T10.1 is protected by legal professional privilege and the decision to relieve the first respondent from the obligation to give a copy of document T10.1 to the applicant in matter 2020/1689 in the Administrative Appeals Tribunal be dismissed.

4.    The application by the applicant for relief under s 39 of the Judiciary Act 1903 (Cth) be dismissed.

5.    The applicant pay the costs of the first respondent of and incidental to the Supplementary Notice of appeal from a tribunal filed by the applicant on 18 September 2020, the Notice of Objection to Competency of the Supplementary Notice of appeal from a Tribunal filed by the first respondent on 25 September 2020, the application for judicial review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the application pursuant to s 39 of the Judiciary Act 1903 (Cth), such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is a supplementary notice of appeal from a tribunal filed by the applicant, Mr Stewart Alpert, on 18 September 2020 (supplementary notice of appeal). Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the applicant appeals from the whole of the decision of the Administrative Appeals Tribunal (Tribunal) given on 3 June 2020 in 4 February 20224 FEBRUARY 2022 (primary decision). In the primary decision, the Tribunal decided to restrict publication or other disclosure of a document (referred to as document T10.1), and relieved the first respondent, the Secretary, Department of Defence (first respondent), from the obligation to give a copy of document T10.1 to the applicant.

2    In the alternative, the applicant applies to the Court pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) to review the Tribunal’s decision that document T10.1 is protected by legal professional privilege and the decision to relieve the first respondent from the obligation to give a copy of document T10.1 to the applicant for the substantive proceedings in the primary decision.

3    Further in the alternative, the applicant applies to the Court pursuant to s 39 of the Judiciary Act 1903 (Cth) (Judiciary Act) for the relief set out under the heading “Orders sought” in the applicant’s supplementary notice of appeal.

4    In summary, the applicant seeks orders from the Court that the appeal be allowed, the primary decision be quashed or set aside, and the first respondent provide a copy of document T10.1 to the applicant pursuant to s 37(1AE) of the AAT Act. In making such orders, the applicant has asked the Court to consider questions of law and to make findings of fact in respect of document T10.1.

5    Also before the Court is a notice of objection to competency, filed by the first respondent on 25 September 2020, objecting to the competency of the applicant’s supplementary notice of appeal under s 44 of the AAT Act.

6    The first respondent seeks orders that the appeal be held to be incompetent, and the application for judicial review of the primary decision be dismissed. The first respondent also seeks an order that the applicant pay the first respondent’s costs of the proceeding, and should pay the costs of, and incidental to, the notice of objection to competency in any event.

Background

7    On 10 June 2018, the applicant filed a freedom of information (FOI) request with the first respondent. The applicant sought documents in relation to proceedings that were bought against the applicant by the first respondent during his service. The documents requested by the applicant were described by the applicant in his request as follows:

Document 1: The Minute titled ‘Preliminary legal advice to 6RAR, 26 Sep 02’ which is alternatively named and was also referenced as ‘7 Bde Legal Minute (to RSM 6RAR) dated 26 Sep 02’.

Note: It appears that the document was written by, the then, MAJ Russell Pearce to the RSM of 6 RAR;

and

Document 2: The Minute titled ‘7Bde Legal Minute 350/02 dated 26 Sep 02’.

Note: It appears that this document was written by, the then, MAJ Russell Pearce to the COMD 7BDE, the then, BRIG Richard Wilson.

8    On 17 August 2018, the first respondent declined the FOI request for the documents (original decision). In relation to Document 1, the first respondent refused the applicant access on the basis that the document could not be located: s 24A(1)(b)(ii) of the Freedom of Information Act 1982 (Cth) (FOI Act). In relation to Document 2, the first respondent refused the applicant access on the basis that it was exempt from release, as it was subject to legal professional privilege: s 42 of the FOI Act.

9    On 30 September 2018, the applicant sought internal review of the original decision on the basis that the decision was erroneous.

10    On 30 October 2018, the first respondent varied its original decision by denying the applicant access to Document 1 and Document 2 because the documents were both subject to legal professional privilege (internal review decision). In the statement of reasons for the internal review decision, the first respondent established that Document 1 and Document 2 were likely to be the same document.

11    It is convenient to refer to this document, or these documents collectively, sought by the applicant as the disputed documents.

12    On 14 December 2018, the applicant requested by email an Information Commissioner review of the first respondent’s internal review decision (IC review).

Information Commissioner Review

13    On 21 February 2019, the Office of the Australian Information Commissioner (OAIC) notified the first respondent by email that the applicant had requested it to review the internal review decision. The OAIC also requested documents of the first respondent in relation to the IC review.

14    On 19 March 2019, the first respondent provided the OAIC with the documents requested. This production was pursuant to an email by Mr Gary Dick to “FOIDR” in the following terms:

Sensitive: Legal

Dear Carl

1.    I refer to your email dated 21 Feb 19, in which you advised that Mr Stewart Alpert has requested the Information Commissioner (IC) to review Defence’s Internal Decision of 30th October 2018, under the Freedom of Information Act 1982 (FOI Act).

2.    In response to your request for information, we provide the following documents:

•    The FOI request (Attachment A)

•    Internal review decision (Attachment B)

•    Original version of documents (Attachment C)

•    Document released administratively (Attachment D)

•    Legal comment regarding the application of s42 to the requested document (Attachment E)

3.    Defence requests that the attached documents are not shared, including with the applicant.

 4.    Note that Defence does not wish to make any submissions at this time.

 5.    Please contact me if you have any questions in relation to this matter.

15    Attachment E was the document later described as document T10.1.

16    On 28 February 2020, a delegate of the Information Commissioner notified the parties that she had decided not to exercise her discretion to undertake the IC review in accordance with s 54W(b) of the FOI Act. In the delegate’s reasons, the delegate observed that it was apparent that:

1.     the applicant’s application for IC review raises the issue of implied waiver of legal professional privilege: ‘In my opinion the decision maker has incorrectly assessed the evidence and has incorrectly applied the common law in relation to ‘implied waiver’’. The applicant referred to the application for internal review in which the applicant said:

The extracts set out above from the documents already provided to me show the substance and effect of the requested document to have already been made known to me.

The 'source documents' were created for the purpose of discussing, coordinating, evaluating and promoting the strengths and weaknesses of the content and recommendations contained within the requested document.

The actions of the Department of Defence itself in releasing the 'source documents' to me have the effect of waiving any privilege which might have attached to the requested document.

I explain below why, on the current authorities, the matters set out above amount to an implied waiver.

2.     the legal issue of implied waiver of legal professional privilege is complex and resolving this IC review matter would require a substantial allocation of OAIC resources, and

3.     the subject matter of the applicant’s FOI request that is the subject of the Department’s decision under review in this IC review is broadly related to the subject matter of the applicant’s FOI request that was the subject of the Department’s decision in IC review MR17/00338. The Information Commissioner resolved the application for IC review in MR17/00338 by way of a decision under s 55K of the FOI Act (‘RA’ and Department of Defence (Freedom of information) [2019] AICmr 54 (4 July 2019)). This matter is presently on appeal to the Administrative Appeals Tribunal.

17    The delegate considered the issues in the IC review and was satisfied that it was in the interests of the administration of the FOI Act that the IC review decision be considered by the Tribunal, because:

•    the IC review is linked to ongoing proceedings in the AAT, and

•    the legal issue of implied waiver of legal professional privilege is complex, resolving the IC review matter would require a substantial allocation of OAIC resources, and the matter could more appropriately be handled through the procedures of the AAT.

18    On 13 March 2020, the applicant filed an application for review before the Tribunal of the first respondent’s internal review decision pursuant to s 57A of the FOI Act.

Decision of the Tribunal

19    On 24 April 2020, the first respondent filed T-documents in the Tribunal in accordance with its obligations under s 37 of the AAT Act. One of the T-documents was a redacted copy of document T10.1.

20    That same day, the first respondent applied for a confidentiality order in respect of document T10.1. The application for a confidentiality order was in the form of an email to the Registrar, as follows:

Dear Registrar

We enclose the s 37 documents for the above proceeding for lodgement with the Tribunal.

Application for order under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act)

Pursuant to ss 35(4) of the AAT Act, the Applicant applies for an order that the publication or disclosure of document T10.1 be restricted to:

•    the members and staff of the Tribunal, and

•    the Respondent and its representatives.

A confidentiality order is sought on the basis that the disclosure to the Applicant of T10.1 would involve the disclosure of a communication that is privileged from production in legal proceedings. The document comprises a request for, and confidential advice in reply from an in-house legal adviser in relation to the application of the s 42 legal professional privilege exemption to the document sought by the applicant under the Freedom of Information Act 1982 (FOI Act).

In part the document also contains references to exempt matter contained in the documents to which this proceeding relates. Section 63(1) of the FOI Act relevantly provides that in determining whether the Tribunal is satisfied that it is desirable to make an order under s 35(4) of the AAT Act, the Tribunal must have regard to the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate.

Noting the terms of s 37(1AF) of the AAT Act, a redacted version of T10.1 is included in the s 37 documents being provided to the Applicant. The full version of T10.1 over which the Department seeks a confidentiality order is being provided separately to the Tribunal only.

…

21    The Tribunal noted at [9] of its reasons that the applicant opposed the first respondent’s application for a confidentiality order, on the grounds that:

(a)    legal professional privilege was waived by the first respondent; and

(b)    procedural fairness and principles of natural justice required that document T10.1 should be made available to him.

22    On 11 May 2020, the parties attended a hearing before the Tribunal in relation to the first respondent’s application for a confidentiality order.

23    On 3 June 2020, the Tribunal made the following orders:

1.     Pursuant to subsection 35(4) of the Administrative Appeal Tribunal Act 1975 (Cth) (the AAT Act) the publication or other disclosure of the information contained in document T10.1 of the section 37 T Documents is restricted to:

(a)     the Respondent and any officers of the Department of Defence authorised by the Respondent to have access to the information;

(b)     the legal representatives of the Respondent;

(c)     a Member of the Tribunal as constituted in this proceeding or a member of staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; and

(d)     a member of staff of the Tribunal’s recording and transcription provider in the course of the performance of his or her duties as a member of that staff.

2.     Pursuant to subsection 37(1AE) of the AAT Act the Respondent is relieved of the obligation to give a copy of T10.1 to the Applicant.

24    In deciding to make the confidentiality order, the Tribunal first considered whether document T10.1 was subject to legal professional privilege. The Tribunal noted the first respondent’s description of the document as follows:

T10.1 comprises:

a.    an email requesting legal advice from an officer of the Department of Defence to the Directorate of Administrative Law and Advisings, Office of Defence General Counsel, Defence Legal (Directorate) in relation to whether the exempt document that is now the subject of the applicant’s Tribunal application is exempt from release under s 42 of the Freedom of Information Act 1982 (FOI Act). The email carries the delimiter ‘Sensitive: Legal’.

b.     an email in reply from a Defence legal officer within the Directorate, providing the legal advice sought. This email also carries the delimiter ‘Sensitive: Legal’.

25    At [21] the Tribunal observed that legal professional privilege applied to in-house counsel communications, provided there was the necessary independence in the provision of legal services. The Tribunal determined, in particular, that:

    the first respondent’s in-house counsel was providing advice to an officer of the first respondent in their legal capacity [21]; and

    it was clear from an inspection of document T10.1 that it was produced for the dominant purpose of requesting and providing independent legal advice between lawyer and client [22].

26    Ultimately, at [25] of its reasons, the Tribunal found that document T10.1 was a communication subject to legal professional privilege.

27    The Tribunal then considered whether the first respondent had waived legal professional privilege. In relation to the specific conduct of the first respondent, the Tribunal relevantly observed:

    Document T10.1 was disclosed by the first respondent to the OAIC in a response to a request for documents (at [35], [37]).

    The first respondent requested that the documents provided to the OAIC not be shared, including the applicant, and marked the email attaching the documents to the OAIC as “Sensitive: Legal” (at [38]).

28    At [40] the Tribunal identified the issue for determination as whether the first respondent’s disclosure of document T10.1, in the above circumstances, was inconsistent with it being permitted to maintain confidentiality in the document.

29    The first respondent submitted that it:

    maintained confidentiality and did not waive legal professional privilege in document T10.1 when that document was provided to the OAIC; and

    had consistently sought to maintain confidentiality over document T10.1.

30    The applicant submitted, in summary, that:

    The first respondent “knowingly and voluntarily provided document T10.1 to the Office of the Australian Information Commissioner … as evidence”.

    By providing document T10.1 to the OAIC, the first respondent also sought to justify the decision of the decision-maker in the reviewable decision. This gave rise to grounds for an issue waiver (also referred to as “state of mind waiver”). Due to the first respondent’s reliance upon document T10.1, that document would not be privileged.

    There was no exempt material contained within document T10.1.

31    In relation to the applicant’s submission that the first respondent knowingly and voluntarily provided document T10.1 to the OAIC, the Tribunal held at [43]-[45], in summary, that:

    It was correct that the first respondent knowingly disclosed document T10.1 to the OAIC.

    It was not clear that document T10.1 was provided as “evidence”. It was provided as a “legal document” which was more akin to a legal submission.

    The fact of disclosure alone was not necessarily sufficient to constitute waiver of privilege, particularly where confidentiality was sought to be maintained by the first respondent.

    The first respondent’s conduct in its dealings with the OAIC was no different to its conduct before the Tribunal. That conduct was not inconsistent with the claim by the first respondent of legal professional privilege in document T10.1.

32    In relation to the applicant’s submissions regarding issue waiver, the Tribunal observed at [47] that issue wavier was not relevant in the circumstances, as the first respondent was not relying on any intention or state of mind in claiming legal professional privilege. Even if the first respondent’s state of mind had been relevant, the Tribunal held that the first respondent would still need to have acted inconsistently with the maintenance of privilege.

33    In relation to the applicant’s submissions that there was no exempt material contained within document T10.1, the Tribunal held at [50]:

    The Tribunal was not at liberty to disclose the contents of document T10.1.

    The Tribunal was not in a position to inform the applicant whether any attachments were referred to in document T10.1, or whether those attachments, if they existed, were exempt documents.

    Pursuant to s 63(1)(b) of the FOI Act, the Tribunal did not need to have regard to the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings related.

34    Ultimately, at [51] of its reasons, the Tribunal found that the respondent had acted consistently with maintaining legal professional privilege with respect to document T10.1.

35    Lastly, the Tribunal considered the relevance of procedural fairness.

36    At [52] of its reasons, the Tribunal observed that, pursuant to s 35(5) of the AAT Act, the Tribunal is to take as the basis of its consideration that principle that it is desirable:

(a)     that hearings of proceedings before the Tribunal should be held in public; and

(b)     that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

(c)     that the contents of documents lodged with the Tribunal should be made available to all the parties.

However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

37    Moreover, the Tribunal observed:

53.     Section 39 of the AAT Act enshrines the general principles of procedural fairness and natural justice that all parties are entitled to have a reasonable opportunity to present their case and inspect documents. It is important to note however, that section 39 is subject to, among other things, any order that is made under section 35.

54.     Despite the public interest in maintaining procedural fairness, it is also necessary to consider the public interest in upholding legal professional privilege …

38    The applicant submitted that s 37(3) of the AAT Act abrogated any right to claim legal professional privilege and relied on Buttigieg v Comcare [2017] AATA 1002 for that proposition. As the Tribunal observed, in Buttigieg the Tribunal considered s 37(3) of the AAT Act and noted that if relevant material was subject to legal professional privilege, there was no obligation to disclose it where the party has applied for an order under s 35(4) of the AAT Act, as the respondent had done in the present case, and a document would still be exempt from production on the ground that it was subject to legal professional privilege.

39    Ultimately, the Tribunal held at [60] that the respondent was entitled to seek and be granted an order protecting the right to claim legal professional privilege.

40    In conclusion, the Tribunal found at [61] that document T10.1 was the subject of legal professional privilege and that privilege had not been waived. The Tribunal accordingly considered it appropriate to give directions prohibiting and restricting the disclosure of document T10.1.

Suplementary Notice of Appeal from a tribunal and Notice of Objection to Competency

41    In the supplementary notice of appeal the applicant sought the following orders:

Pursuant to the Court’s jurisdiction invoked by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth):

1.     The appeal be allowed.

2.     The decision of the Second Respondent of 3 June 2020 be set aside.

3.     Direct that the First Respondent is to provide a copy of document T10.1 to the Applicant pursuant to s 37(1AE) of the Administrative Appeals Tribunal Act 1975 (Cth).

In the alternative, pursuant to the Court’s jurisdiction invoked by s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 39 of the Judiciary Act 1903 (Cth):

1.     The application be allowed.

2.     The decision of the Second Respondent of 3 June 2020 be quashed.

3.     Direct that the First Respondent is to provide a copy of document T10.1 to the Applicant pursuant to s 37(1AE) of the Administrative Appeals Tribunal Act 1975 (Cth).

42    In support of the orders sought, the applicant relied on the following four grounds:

1.     The tribunal erred in approaching the question of whether document T10.1 was disclosable from the position that it was an exempt document for the purposes of the Freedom of Information Act 1982 (Cth).

2.     The tribunal erred in finding, at [47], that “issue waiver” is not a relevant consideration to whether legal professional privilege had been waived.

3.     The tribunal erred in finding, at [45] to [51], [60] and [61], that the First Respondent had not waived legal professional privilege.

4.     The tribunal erred in finding, at [60], that the First Respondent is entitled to seek and be granted an order protecting its right to claim legal professional privilege.

43    In making the orders sought by the applicant, the applicant asked the Court to answer the following three questions of law:

1.     Is document T10.1 an exempt document for the purposes of the Freedom of Information Act 1982 (Cth)?

2.     Did the First Respondent waive legal professional privilege in document T10.1?

3.     Is it procedurally unfair for the First Respondent not to disclose document T10.1 to the Applicant?

44    The applicant also asked the Court to make the following two findings of fact:

1.     That the First Respondent has not acted consistently with the maintenance of a claim for legal professional privilege over document T10.1.

2.     That document T10.1 is not the subject of a valid claim for legal professional privilege, or, alternatively, any privilege has been waived.

45    In the first respondent’s notice of objection to competency, the first respondent relied on the following two grounds of objection:

1.     Pursuant to section 44 of the AAT Act, an appeal may only be brought from a “decision” of the Tribunal which constitutes the effective decision or determination of the application for review: Director-General of Social Services v Chaney [1980] FCA 87; 47 FLR 80 at 103 per Deane J.

2.     The decision in respect of which the Applicant seeks to appeal was a decision to restrict the publication or other disclosure of information under s 35(4) of the AAT Act. That is not a decision in respect of which an appeal lies under s 44 of the AAT Act: see Australian Postal Corporation v Nguyen (1996) 71 FCR 516, ASIC v PTLZ [2008] FCAFC 164 and Agapis v Plumbers Licensing Board [2012] FCA 1375.

Consideration

46    This case raises a number of interesting and intertwined issues.

47    Specifically, those issues are:

    Whether the applicant’s appeal from the primary decision is competent in light of s 44 of the AAT Act and relevant case law (objection to competency filed by the respondent on 25 September 2020).

    Whether the Tribunal erred in applying s 35(4) of the AAT Act by approaching the question of whether document T10.1 was disclosable by reference to whether it was an “exempt document” for the purposes of s 42 of the FOI Act, rather than a document lodged under s 37 of the AAT Act (question of law 1, ground 1 of the supplementary notice of appeal).

    Whether the Tribunal erred in its findings at [47] concerning “issue waiver” (ground 2 of the supplementary notice of appeal).

    Whether the Tribunal erred in failing to find that any legal professional privilege which attached to document T10.1 had been waived by the first respondent (question of law 2, ground 3 of the supplementary notice of appeal).

    Whether the Tribunal erred in finding that there had not been a denial of procedural fairness (question of law 3 of the supplementary notice of appeal).

48    The applicant also sought findings of fact by the Court, namely:

    That the first respondent had not acted consistently with the maintenance of a claim for legal professional privilege over document T10.1.

    That document T10.1 was not the subject of a valid claim for legal professional privilege, or alternatively that any privilege had been waived.

49    It is convenient to examine each of these issues in order.

Is the appeal competent?

50    As Deane J found in Director-General of Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571 at 593, a decision of the Tribunal is appealable under s 44(1) of the AAT Act if it constitutes the effective decision or determination of the application for review. Justice Deane further observed that, ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the AAT Act.

51    However, his Honour went on (at 593) to say that the AAT Act contemplated qualifications to the finality requirement, namely:

The qualifications referred to are an appeal pursuant to s 44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent 'decisions' may properly be given.

52    Section 43 of the AAT Act materially provides:

…

Tribunal's decision on review

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)     setting aside the decision under review and:

(i)     making a decision in substitution for the decision so set aside; or

(ii)     remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

53    Section 44 of the AAT Act relevantly provides:

Appeal on question of law

(1)    A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

…

Appeal about standing

(2)     Where a person has applied to the Tribunal for a review of a decision, or has applied to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision, the person may appeal to the Federal Court of Australia from the decision of the Tribunal.

…

54    The applicant argued that “finality” for the purposes of s 44 of the AAT Act includes both determination of rights in respect of particular limited issues and in respect of the substantive relief sought. The applicant further submitted that in this case the determination of the Tribunal involved more than a confidentiality order – it determined an issue of legal professional privilege concerning document T10.1.

55    In my view the first respondent was correct in submitting that the confidentiality order of the Tribunal in respect of document T10.1 is not appealable pursuant to s 44 of the AAT Act, and that accordingly the appeal is not competent.

56    First, the “decision under review” for the purposes of ss 43 and 44 of the AAT Act is the internal review decision of the first respondent, affirming the first respondent’s original decision to refuse access to the disputed documents pursuant to s 42 of the FOI Act. Insofar as I am aware, the “decision under review” has not yet been the subject of review by the Tribunal, and no decision has been made by the Tribunal which could be the subject of an appeal to this Court pursuant to s 44(1) of the AAT Act.

57    Second, the applicant’s argument that the confidentiality order of the Tribunal was a “final” order for the purposes of s 44(1), because it was the operative or final and determinative decision as to whether or not legal professional privilege existed over document T10.1, cannot stand, in view of the facts that:

    the confidentiality order was plainly not a decision affirming, varying or setting aside a “decision under review” within the meaning of s 43(1) of the AAT Act;

    the confidentiality order did not effectively determine any review by the Tribunal of the internal review decision of the first respondent concerning access to the disputed documents within the meaning discussed by Ryan J in APRA v VBN [2005] FCA 1868 at [39];

    the confidentiality order was made pursuant to s 35(4) of the AAT Act, which empowers the Tribunal to give directions prohibiting or restricting the publication or other disclosure of information;

    the confidentiality order was not made referable to the standing of either party, such as to enliven s 44(2) of the AAT Act; and

    I am not satisfied that the confidentiality order made by the Tribunal over a supporting document filed by the first respondent opposing the applicant’s substantive application in the Tribunal could properly be described as being one of two or more separate parts in respect of which independent “decisions” may properly be given. Rather, in this case (similarly to the position in such cases as Agapis v Plumbers Licensing Board [2012] FCA 1375) the applicant’s substantive application seeking review of the internal review decision of the first respondent has progressed no further than the filing by the parties of material in the Tribunal and the specific dispute concerning confidentiality of document T.10.1. The confidentiality order can properly be described as an interlocutory procedural direction, being a step in the deliberative or reasoning process on the way to the ultimate or determinative decision (APRA v VBN at [42]).

58    Third, I am not satisfied that APRA v VBN is authority that the effect of an order of the Tribunal requiring production of material over which privilege is claimed is “final” and appealable for the purposes of s 44 of the AAT Act.

59    Finally, I reject the applicant’s argument that the Tribunal’s interlocutory decision was final, and therefore appealable, because it finally determined the position in respect of the interlocutory application for a confidentiality order brought by the first respondent. Giving credence to this argument would potentially mean that any decision of the Tribunal deciding any interlocutory application before it could be appealable. This is clearly not the case, again in view of such authorities as Chaney.

60    In my view the appeal pursuant to s 44 of the AAT Act is not competent. However, it is common ground that, in the supplementary notice of appeal, the applicant has competently sought judicial review of the decision of the Tribunal pursuant to s 5 of the ADJR Act or alternatively s 39 of the Judiciary Act. I now turn to the remaining issues raised by those applications.

Whether the Tribunal erred in applying s 35(4) of the AAT Act by approaching the question of whether document T10.1 was disclosable by reference to whether it was an “exempt document” for the purposes of s 42 of the FOI Act, rather than a document lodged under s 37 of the AAT Act

61    In respect of this issue I observe as follows.

62    First, the lodgement by the first respondent of document T10.1 was in accordance with its obligations under s 37(1) of the AAT Act, which requires a decision-maker to lodge material documents (including documents relevant to the review of the decision by the Tribunal: s 37(1)(b)).

63    Second, the application by the first respondent for a confidentiality order was pursuant to s 35(4) of the AAT Act, which empowers the Tribunal to give directions prohibiting or restricting the publication or other disclosure of information, including to some or all of the parties.

64    Third, the Tribunal at [10] described the first respondent’s claim in respect of document T10.1 as being that it was an “exempt document” subject to legal professional privilege. The Tribunal then set out general principles referable to legal professional privilege, including by reference to ss 42 and 63 of the FOI Act, but also clearly had regard to common law principles explained in such cases as Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49, Glencore International AG v Commission of Taxation (2019) 265 CLR 646; [2019] HCA 26 and Grant v Downs (1976) 135 CLR 674; [1976] HCA 63.

65    While at first blush there appears to be substance to the applicant’s claim concerning the approach by the Tribunal describing document T10.1 by reference to it being an “exempt document”, I am satisfied that no error was made by the Tribunal in its evaluation of the question whether document T10.1 should be the subject of a confidentiality order for the purposes of s 35(4) of the AAT Act. In particular, I note that, although in its reasons the Tribunal could be said to have metaphorically ventured down a rabbit hole in its discussion of exempt documents for the purposes of the FOI Act in the context of the first respondent’s application for a confidentiality order for document T10.1:

    At [19] the Tribunal noted the submission of the first respondent that the disputed documents were “exempt documents” for the purposes of the FOI Act.

    I agree with the submission of the first respondent that the Tribunal plainly appreciated that document T10.1 had been filed by the first respondent pursuant to s 37(3) of the AAT Act and that the first respondent had submitted that document T10.1 was subject to legal professional privilege ([8]).

    Despite summarising the first respondent’s application as being that document T10.1 (as distinct from the disputed documents) was an “exempt document”, the Tribunal nonetheless plainly had regard to general principles relevant to whether legal professional privilege applied in respect of document T10.1 ([12]-[14], [21], [25]).

    At [50] the Tribunal properly addressed the applicant’s submissions concerning the presence or otherwise of “exempt material” in document T10.1.

    The Tribunal actually found that the first respondent had acted consistently with maintaining legal professional privilege with respect to document T10.1. It did not find that document T10.1 was an “exempt document” within the meaning of the FOI Act.

66    In considering the reasons of the Tribunal, I note that the Tribunal’s reasons are not to be read with an eye finely attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, recently reiterated in Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 559; [2020] FCAFC 165 at [99], and BXT17 v Minister for Home Affairs (2021) 283 FCR 248; [2021] FCAFC 9 at [171].

67    Further, and notwithstanding the terms of s 37(3) of the AAT Act, I do not accept that this section abrogates the law in respect of legal professional privilege.

68    Section 37(3) of the AAT Act provides:

Privilege and public interest

…

…

(3)     This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.

69    At [57]-[58] of its reasons the Tribunal said:

57.    Mr Alpert contended that section 37(3) of the AAT Act abrogated any right to claim legal professional privilege and relied on Buttigieg v Comcare [2017] AATA 1002. In that case Deputy President Forgie considered section 37(3) of the AAT Act and noted that if relevant material was subject to legal professional privilege, there is no obligation to disclose it where the party has applied for an order under section 35(4) of the AAT Act, as the Department has done here, and a document would still be exempt from production on the ground that it was subject to legal professional privilege.

58.    See also Australian Prudential Regulation Authority v VBN [2005] FCA 1868 where Ryan J stated at [40]:

I have already indicated...my tentative view that s 37(3) of the Act does not "abrogate" privilege, including legal professional privilege. If, as I think, scope remains for the Tribunal to give effect to legal professional privilege attaching to documents required to be lodged by a decision-maker, a decision which denies that effect has a final impact on what the High Court has identified as a substantive common law right or immunity.

(Footnotes omitted).

70    Plainly, by exercising its power under s 34(5) of the AAT Act, the Tribunal can give effect to a claim for legal professional privilege (as was the case in this proceeding).

71    In my view ground 1 of the notice of appeal is not substantiated.

Whether the Tribunal erred in its findings at [47] concerning “issue waiver”

72    At [46]-[47] of its reasons the Tribunal said:

46.    Mr Alpert also contended that:

Additionally, by providing document T10.1 to the IC, the Respondent has also sought to justify the decision of the decision maker in the IC reviewable decision. This consequentially raises grounds for an issue waiver, which is also commonly referred to as a 'state of mind waiver'.

Where a party pleads that he or she undertook certain action 'in reliance on' a particular representation made by another, he or she opens up as an element of his or her cause of action, the issue of his or her state of mind at the time that he or she undertook such action. The court will be required to determine what was the factor, or what were factors, which influenced the mind of the party so as to induce him or her to act in that way. That is, the party puts in issue in the proceeding a matter which cannot fairly be assessed without examination of relevant legal advice, if any, received by that party. In such circumstances, the party, by putting in contest the issue of his or her reliance, is to be taken as having consented to the use of relevant privileged material, or to put it another way, to have waived reliance on the privilege which such material would otherwise attract (see: Telstra Corp Ltd v BT Australasia Pty Ltd [1998] FCA 901; (1998) 156 ALR 634. See also Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 at l24l; Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd [2015] VSCA 101 at [34].)

Therefore, due to the Respondent's reliance upon document T10.1, that document would not be privileged from production in legal proceedings.

47.    Issue waiver or state of mind waiver arises where a party’s state of mind becomes relevant to the cause of action. That is where the privileged information affected a party’s state of mind. Issue waiver is not relevant here because the Department is not relying on any intention or state of mind in claiming legal professional privilege. Even if the Department’s state of mind had been relevant, the Department would still need to be found to have acted inconsistently with the maintenance of privilege: Osland.

(Footnotes omitted).

73    In Viterra Malt Pty Ltd v Cargill Australia Ltd (2018) 58 VR 333; [2018] VSCA 118, the Court of Appeal of Victoria said:

32.    … Issue waiver, such as was alleged here, involved the propounding of an issue whose elements were such that disclosure could not properly be resisted consistently with the propounding of the issue.

74    Insofar as I can ascertain, in ground 2 of the notice of appeal the applicant does not claim that it would be inconsistent with the first respondent’s pleaded position for it to withhold document T10.1 because it contained material bearing on its “state of mind” in relation to the applicant’s substantive application. Further, I am unable to see that the propounding by the first respondent of its claim of legal professional privilege in respect of the disputed documents was inconsistent with the maintenance of legal professional privilege in respect of document T10.1 (contrast, for example, the position analysed by Byrne J in Australia and New Zealand Banking Group Limited v ANZCover Insurance Pty Ltd [2004] VSC 529 at [2]-[15]).

75    Indeed, insofar as I can ascertain from the written and oral submissions of the applicant in this matter, he made no submissions specifically addressing this issue (and thus ground 2 of the notice of appeal). Instead the submissions of the applicant, both in writing and at the hearing, simply addressed the question whether any privilege in document T10.1 had been waived by the first respondent.

76    In the absence of clearly articulated arguments before this Court in respect of this point, in my view ground 2 of the supplementary notice of appeal is not substantiated.

Whether the Tribunal erred in failing to find that any legal professional privilege which attached to document T10.1 had been waived by the first respondent

77    In summary, the applicant submitted that the first respondent had acted inconsistently with the maintenance of privilege in respect of document T10.1:

    by providing document T10.1 to the OAIC in response to a request for documents and submissions about the issue of whether the preliminary advice was an exempt document for the purposes of s 42 of the FOI Act; and

    by doing so without submissions to the OAIC in relation to that question, such that document T10.1 must in fact have been the first respondent’s submission about the applicability of s 42 of the FOI Act.

78    In so submitting, the applicant relied on Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 and Queensland Local Government Superannuation Board v Allen [2016] QCA 325 at [52].

79    I do not consider that the Tribunal erred in rejecting this aspect of the applicant’s claim.

80    It is clear that waiver of legal professional privilege may be express or implied, and privilege may in fact be waived notwithstanding that the holder of the privilege did not intend to do so. As the plurality explained in Mann v Carnell at [29]:

… What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

81    Nonetheless, as White J recently observed in Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd [2021] FCA 511 at [133]

As legal professional privilege is an important substantive common law right, implied waiver is not lightly imposed: Attorney‑General (NT) v Maurice at 487 (Mason and Brennan JJ); Arnold Bloch Leibler (A firm) v Slater & Gordon Limited [2020] FCA 1496 at [66]. Thus, in Expense Reduction, the High Court said that courts will find an imputed waiver of privilege when the action of the privilege holder is “plainly inconsistent” with the maintenance of the confidentiality which the privilege is intended to protect.

(Emphasis added).

82    Turning to the question of whether the act of the first respondent in providing document T10.1 to the OAIC was inconsistent with the maintenance of legal professional privilege, such that the first respondent can be taken to have waived privilege, I accept the submission of the first respondent that it cannot be said that conduct of the first respondent was such that it was plainly inconsistent with the maintenance of the confidentiality in respect of document T10.1.

83    First, to adopt the language of the plurality in Mann v Carnell at [33], it does less than justice to the first respondent’s position to describe what occurred in the present case as disclosure to a third party. In the present case the disclosure was by the first respondent to the OAIC, a statutory office-holder, in the context of its review of a decision of the first respondent. Importantly, s 55DA of the FOI Act specifically provides:

Decision-maker must assist Information Commissioner

In an IC review, the agency or Minister who made the IC reviewable decision must use the agency's or the Minister's best endeavours to assist the Information Commissioner to make his or her decision in relation to the IC review.

(Emphasis added).

84    Plainly it was incumbent on the first respondent to use its best endeavours to assist the OAIC in respect of the review, and it was in this context that document T10.1 was provided by the first respondent to the OAIC.

85    Second, and importantly, document T10.1:

    concerned an internal consultation with an in-house legal advisor in relation to the application of s 42 of the FOI Act to the disputed documents;

    was disclosed by the first respondent to the OAIC on the express basis that it was to remain confidential and not be disclosed to the applicant; and

    was in an email marked “Sensitive: Legal”.

86    The first respondent clearly asserted the maintenance of legal professional privilege in respect of the provision of document T10.1 to the OAIC.

87    Third, although the first respondent did not provide submissions to the OAIC – and indeed the first respondent specifically stated that it did not wish to make submissions to the OAIC in relation to the review – the inference cannot necessarily be drawn that document T10.1 itself was intended to be a submission of the first respondent to the OAIC, as suggested by the applicant. Rather, as the first respondent quite reasonably submitted, the disclosure was consistent with the proposition that the first respondent sought to assist the OAIC by providing all materials that were related to document T10.1 at issue in the review, including the outcome of its own internal consultations as to the status of that document.

88    I also accept the analogy between the requirement that first respondent assist the OAIC, including by the provision of relevant material (in accordance with s 55DA of the FOI Act), and the requirement that the first respondent assist the Tribunal by the provision of relevant material (in accordance with s 37 of the AAT Act). I note further that this analogy was similarly accepted by the Tribunal at [45].

89    While the Tribunal at [43] opined that document T10.1 was provided as ‘“legal comment” which is more akin to a legal submission’, I do not consider that this is a conclusive statement characterising the content of document T10.1.

90    Finally, and critically, it is plain from its reasons that the Tribunal:

    correctly set out relevant legal principles in respect of waiver of legal professional privilege (see in particular reasons of the Tribunal at [26]-[33]); and

    correctly applied those principles to the facts of this case (see in particular reasons of the Tribunal at [34]-[51]).

91    In my view ground 3 of the supplementary notice of appeal is not substantiated.

Whether the Tribunal erred in finding that there had not been a denial of procedural fairness.

92    Finally, in respect of the issue of procedural fairness, at [52]-[53] the Tribunal noted the terms of s 35(5) and s 39 of the AAT Act, and the inherent desirability of parties having the opportunity to inspect relevant documents. Materially, s 39 provides:

Submissions--Divisions other than Security Division and Social Services and Child Support Division

(1)     Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

…

93    However, plainly s 39 is subject to s 35 of the AAT Act, which specifically empowers the Tribunal to make confidentiality orders. This point was made by the Tribunal at [56], referring in turn to the decision of the Full Court of this Court in News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88 at 97; [1984] FCA 446.

94     I further note the following observation of the Tribunal in this case:

59.    In OJG Engineering Pty Ltd and Commissioner of Taxation [2019] AATA 4293 Deputy President Boyle noted (at [30]) that it is a common occurrence in FOI matters before the Tribunal that the application will not have a copy of the documents that are the subject of the FOI request, but that this “does not mean that there is a denial of procedural fairness, it is simply an obvious necessity given the nature of the application”.

(Emphasis in original).

95    For reasons I have already given, I do not accept the submission of the applicant that the only inference to be drawn from the sequence of events concerning the provision by the first respondent of document T10.1 to the OAIC was that the document was in the nature of a submission, which should have been provided to the applicant.

96    In my view there is no substance to question of law 3 in the supplementary notice of appeal.

Findings of fact

97    In accordance with these reasons for judgment I also make the following factual findings:

(1)    The first respondent has acted consistently with the maintenance of a claim for legal professional privilege over document T10.1.

(2)    Document T10.1 is the subject of a valid claim for legal professional privilege, or alternatively any privilege has not been waived.

Conclusion

98    In conclusion I also note ground 4 of the supplementary notice of appeal, namely that the Tribunal erred in finding at [60] that the first respondent was entitled to seek and be granted an order protecting its right to claim legal professional privilege. Clearly, in light of these reasons for judgment, this ground is not substantiated.

99    It follows that the appeal pursuant to s 44 of the AAT Act is not competent and should be dismissed, and that the applications pursuant to s 5 of the ADJR Act and s 39 of the Judiciary Act should be dismissed.

100    The first respondent has sought its costs of the proceeding, and also its costs of and incidental to the notice of objection to competency. In my view it is appropriate that costs should follow the event, in accordance with ordinary principles applied by the Court pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth): Commissioner of Taxation v Bosanac (No 2) [2022] FCAFC 5. The first respondent is entitled to its costs.

Associate:

Dated:    4 February 2022