Sumabe Pty Ltd and Minister for Health and Ageing [2011] AATA 799 (11 November 2011)

Last Updated: 2 December 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 799

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/2695

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Sumabe Pty Ltd

Applicant

And

Minister for Health & Ageing

Respondent

DECISION

Tribunal

Ms N Isenberg, Senior Member

Date 11 November 2011

Place Sydney

Decision

Being satisfied that it is desirable to do so by reason of the confidential nature of the information, the Tribunal directs, pursuant to section 35(2)(b) and (c) of the Administrative Appeals Tribunal Act 1975, that disclosure to the Applicant and publication of the contents of the following document lodged with the Tribunal be prohibited: 1. Respondent’s document dated 9 June 2011, described as ‘legal advice provided to the maker of the decision under review’.

...................[sgd].........................
Ms N Isenberg
Senior Member

CATCHWORDS

Practice and Procedure – application for confidentiality order – legal professional privilege – application for order granted.

LEGISLATION

Administrative Appeals Tribunal Act 1975 – Sections 35 and 37

CASES

Australian Prudential Regulation Authority v VBN [2005] FCA 1868

VBN and Anor and Australian Prudential Regulation Authority and Anor [2005] AATA 1060

Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

Waterford v Commonwealth [1987] HCA 25; (1987) 12 ALD 741

Oliveri v Administrative Appeals Tribunal and Anor (1997) 50 ALD 190

REASONS FOR DECISION

11 November 2011

Ms N Isenberg, Senior Member

1. On 14 October 2011 this matter was listed for the hearing of the Respondent’s application for a confidentiality order, pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), on the basis of legal professional privilege.

Background

2. The application for review made to the Tribunal is for review of a decision made 14 June 2011 under section 60 of the Therapeutic Goods Act 1989 ("TG Act") which confirmed a determination made 23 March 2011, under section 30 TG Act, to cancel the listing of four coffee and hot chocolate products on the basis that the products did not constitute therapeutic goods and therefore were ineligible for listing on the Australian Register of Therapeutic Goods.
3. The application for review was lodged on 8 July 2011 and the Tribunal informed the Respondent of the application by letter dated 11 July 2011. Under cover of letter dated 15 August 2011 the Respondent filed and served documents under subsection 37(1) of the AAT Act.
4. A document said to be "legal advice provided to the maker of the decision under review" dated 9 June 2011 (“the document”) was provided to the Tribunal on the basis that, although it was considered to be relevant (per subsection 37(1)(b)), an application was made under subsections 35(2)(b) and (c) of the Act, that it not be published or disclosed to the Applicant, on the basis that it was prepared for the dominant purpose of providing legal advice to the decision-maker and was therefore subject to legal professional privilege.

Relevant Legislation

5. Section 37 AAT Act provides, relevantly:

“(1) Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:
(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b) every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.
(1AE) A person who is required under subsection (1) or (1AB) to lodge 2 copies of a statement or other document or part of a document with the Tribunal under this section within a particular period must also give a copy of the statement or other document or part of a document within that period to each other party to the proceeding.
(1AF) If:
(a) a person who has made a decision that is the subject of an application for a review by the Tribunal would, apart from this subsection, be required under paragraph (1)(b) to lodge 2 copies of a document or a part of a document with the Tribunal in respect of the application; and
(b) within the period applicable under subsection (1) the person:
(i) applies to the Tribunal for a direction under subsection 35(2) in relation to the document or part of the document and lodges with the Tribunal, together with the application for the direction, 2 copies of the document or part of the document; and
(ii) gives a copy of the application for the direction to each party to the application for review;
the person is not required to comply with paragraph (1)(b) in relation to the document or part of the document unless and until the Tribunal, after hearing the application for the direction, directs the person to do so.
(1AG) Subsection (1AF) does not affect the obligation of a person referred to in that subsection to comply with paragraph (1)(b) in relation to any document or part of a document to which that subsection does not apply.
(3) This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.”

6. Section 35 AAT Act provides, relevantly:

“(1) Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.
(3) In considering:
(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.”

Issues:

7. The issues to be considered by the Tribunal include:
   • Is the document relevant?
   • Does the document attract legal professional privilege?
   • Does the AAT Act require disclosure of documents that attract legal professional privilege?
   • Has the subsection 35(2) application has been properly made?
   • Even if the document is subject to legal professional privilege should it nonetheless be provided to the Applicant?

Is the document relevant?

8. On the face of the document it appears that it was created on 9 June 2011, when, at the request of the decision-maker, the Respondent's in-house solicitor, Ms Todd, provided written advice to the decision-maker on his draft decision.
9. I was informed that at the time of filing the section 37 documents in the matter, the Respondent's in-house solicitor considered that it was only by virtue of the paragraph of the advice that dealt with the statutory provision that the advice could be argued to be relevant to the Tribunal's review of the decision: see VBN and Anor and Australian Prudential Regulation Authority and Anor [2005] AATA 1060 (“VBN”). The balance of the advice was said to relate to the process by which the decision was made: see VBN. Because of the presence of the paragraph that relates to the interpretation of the relevant statutory provision, and because of the general obligations on a Respondent to assist the Tribunal, the advice had therefore been lodged under subsection 37(1)(b).
10. At the interlocutory hearing however the Respondent submitted that the advice mainly addressed a large number of procedural aspects of the draft decision and only briefly referred to the interpretation of the statutory provision under which the decision was being made. The paragraph that refers to the statutory provision in question, it was submitted, does not form any concluded view, nor does it illuminate the meaning of the provision beyond that taken by the decision-maker in the reviewable decision. Therefore, it was submitted, the document was not relevant.
11. I do not agree. The document clearly related to the matter at hand, namely the issue of the cancellation of the listing of four coffee and hot chocolate products on the basis that the products did not constitute therapeutic goods and therefore were ineligible for listing on the Australian Register of Therapeutic Goods. The question of relevance is informed by subject matter and context. The document came into existence in the Respondent’s consideration of the very matter before the Tribunal. I do not think it appropriate to adopt an approach whereby each paragraph of a document, which is clearly identified as legal advice, is evaluated as to whether it in fact provides legal advice or advice on ‘mere’ procedural matters. Errors in decision-making can occur in ‘procedural matters’ and avoidance of such errors can properly be the subject of legal advice.

Does the document attract legal professional privilege?

12. As counsel for the Applicant correctly identified, confidential communications between a client and the client's legal advisor will attract (legal professional) privilege if made for the dominant purpose of advice: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49. Further, the privilege attaches to legal advice given in relation to administrative proceedings and thus, proceedings before the Tribunal: Waterford v Commonwealth [1987] HCA 25; (1987) 12 ALD 741.
13. It was clear to me from an inspection of the document that it was brought into existence for the dominant purpose of providing legal advice to the decision-maker on his draft decision and statement of reasons. Further, the advice was marked "legal in confidence". There was no evidence that it has been otherwise disclosed or referred to by the Respondent in its dealings with the Applicant or any other person; there is, therefore, no suggestion of waiver.
14. Ultimately, the Applicant did not demur to the Respondent's characterisation of the document as legal advice and that it was prepared for the dominant purpose of providing legal advice to the decision maker.
15. The advice therefore attracts legal professional privilege and, by its nature, is confidential.

Does the AAT Act require disclosure of documents that attract legal professional privilege?

16. Counsel for the Applicant submitted that subsection 37(3) of the AAT Act has the effect of requiring the Respondent to provide the Applicant with the document under subsection 37(1AE) because it is objectively relevant: see Australian Prudential Regulation Authority v VBN [2005] FCA 1868 at [34] (“VBN on appeal”).
17. Subsection 37(1AE) provides that documents required to be lodged under subsection 37(1) must also be provided to the Applicant. Subsection 37(3) provides that section 37 has effect notwithstanding any law relating to privilege in relation to the production of documents.
18. The combined effect of subsections 37(1AE) and (3), it was submitted, is to require production to the Applicant of the document in question, notwithstanding it would otherwise attract (legal professional) privilege.
19. The Respondent referred me to the observations of Ryan J in VBN on appeal 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.”

20. Ryan J also made it plain [at 45] that the party bearing the obligation under subsection 37(1) retains the opportunity to invoke subsection 35(2)(c) in the way contemplated by subsection 37(1AF). By implication, an order under subsection 35(2)(c) can be made where the relevant basis for the order is that of legal professional privilege. To conclude otherwise would, in my view, create an absurd result whereby only after documents had already been produced to (and inevitably examined by) an Applicant could a claim for legal professional privilege be considered.
21. Subsection 37(1)(b) AAT Act requires that all documents in the decision-maker's control or possession that are relevant to the review of the decision, are to be lodged with the Tribunal, and the document has in fact been lodged with the Tribunal on that basis. The result, correctly in my view, characterised the process undertaken in respect of documents before the Tribunal as a ‘3-step’ process, whereby, first, the documents considered by the decision-maker are produced (per subsection37(3)), access to them is determined (per subsection 37(1AE)), and then the documents are tendered in the proceedings.

Has the subsection 35(2) application has been properly made?

22. Subsection 37(1AF) provides the procedure by which a person may seek to have a direction made that a document not be filed pursuant to subsection 37(1)(b) AAT Act. Within 28 days of receiving notice of the application for review, the decision-maker may apply to the Tribunal for a direction (under subsection 35(2)) in relation to a document by lodging with the application for the direction two copies of the document, and giving a copy of the application to each party to the application. The decision-maker is then not required to comply with subsection 37(1)(b) unless and until the Tribunal directs him or her to do so. Counsel for the Applicant submitted that there is no express provision in the AAT Act to extend the time for making a request under subsection 37(1AF), nor does the Practice Direction in relation to section 37 contemplate an extension of time.
23. Counsel for the Applicant submitted that the application pursuant to subsection 37(1AF) had not been made within time, it having been made on 15 August 2011, after having been sent notification of the application for review by the Tribunal on or about 11 July 2011. Therefore, it was submitted, the Tribunal had no power to consider the Respondent’s application.
24. The submission on behalf of the Applicant overlooks subsection 37(1AF)(b) which refers back to subsection 37(1) which foreshadows that documents relevant to the matter may be filed ‘within such further period as the Tribunal allows’. The Tribunal has taken no exception to the lodgment in this matter. That approach is consistent with the purpose of lodgment of relevant documents, namely that the Tribunal can consider those documents which the decision maker had before him/her in reaching the decision under review.
25. Therefore the subsection 35(2) application has been properly made.

Notwithstanding that the document is subject to legal professional privilege should it nonetheless be provided to the Applicant?

26. The general principle is that documents should be disclosed: section 35. I was referred to Oliveri v AAT (1997) 50 ALD 190 at 193.3 as authority for the proposition that except in ‘rare cases’, an applicant is entitled to view those documents upon which the decision-maker has relied (or ought to have relied). While I accept the general principle of disclosure, I did not find that case of assistance in relation to legal professional privilege issues, which are quite different, in my view, to issues having their foundation in procedural fairness and the decision making process.
27. The Applicant contended that there is no subsection 37(1)(a) statement, and that the document may assist in the Applicant better understanding the Respondent‘s decision-making process. The ‘section 37 documents’ clearly contain a document which purports to be such a statement. The AAT Act does not specify the level of detail required, nor does the Practice Direction contain requirements that would necessarily, in my view, go beyond what one might ordinarily expect in a decision under review.
28. Subsection 35(2) AAT Act provides a mechanism for curtailing the principle of openness and disclosure on the ground of the confidential nature of a document, "or for any other reason". In respect of documents that would otherwise form part of the T-documents, the mechanism for withholding disclosure is given by subsection 37(1AF), as discussed above. The Tribunal should examine the document prior to restricting access to it: per Oliveri at 195.2, and I have done so.
29. I was referred, in particular to Deputy President Forgie’s remarks in VBN at [25], which, in VBN on appeal, was cited without adverse comment:

“Having regard to the whole of s.37 and to the amendments that have been made to it, it seems to me that documents required to be lodged unser s. 37(1)(b) must include those that are subject to legal professional privilege. Those documents must also be given to other parties to the proceeding under s.37(1AE) unless the Tribunal makes a confidentiality order under s. 35(2). That confidentiality order would not be made as a matter of course on the basis that the document is subject to legal professional privilege. To do so would run counter to the express requirements of Ss.37(1)(b) and 37(1AE) to produce and give documents and of s. 37(3) that the section has effect notwithstanding any rule of law relating to privilege.”.

30. The confidentiality order in this matter is not being made ‘as a matter of course’, but following detailed consideration following submissions from the parties. As I observed, ultimately the Applicant did not dispute the Respondent’s claim of legal professional privilege.

DECISION

31. I am satisfied that the Respondent’s document dated 9 June 2011, described as ‘legal advice provided to the make of the decision under review’, is of a confidential nature. Therefore, the Tribunal directs, pursuant to subsections 35(2)(b) and (c) of the AAT Act, that disclosure to the Applicant and publication of the contents of that document be prohibited.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed: .............[sgd].........................

Associate

Date of Interlocutory Hearing 14 October 2011

Date of Decision 11 November 2011

Counsel for the Applicant Mr M Vincent

Solicitor for the Applicant Saunders Legal

Counsel for the Respondent Mr J Renwick SC

Solicitor for the Respondent Australian Government Solicitors