Cianfrano v Environment Protection Authority & Ors [2003] NSWADT 259 (8 December 2003)

Last Updated: 8 December 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Cianfrano v Environment Protection Authority & Ors [2003] NSWADT 259

PARTIES: APPLICANT

Robert Cianfrano

RESPONDENTS

Environment Protection Authority, Cabonne Council, and the Department of Infrastructure, Planning and Development

FILE NUMBERS: 033039; 033065; 033066; 033123A

HEARING DATES: 02/07/03

SUBMISSIONS CLOSED: 22/09/2003

DECISION DATE: 08/12/2003

BEFORE: Robinson MA - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Freedom of Information Act 1989

CASES CITED: Commissioner of Police v Ombudsman [1988] 1 NZLR 385

Edlund v Commissioner of Police, New South Wales Police [2003] NSWADT 195)

Environment Protection Authority v Waight (No 2)(1999) 109

Gliksman v Director General, NSW Department of Health [2002] NSWADT 1

Johnson Tiles Pty Ltd v Esso Australia Ltd (No3)(2000) [2000] FCA 495; 98 FCR 311

Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93

Neary v The Treasurer, New South Wales [2002] NSWADT 261

Sobh v Police Force of Victoria [1994] 1 VR 41

Waterford v Commonwealth [1987] HCA 25; (1986) 163 CLR 54

APPLICATION: access to documents - legal professional privilege

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

T Howard, barrister

ORDERS: 1 The reviewable decisions are affirmed in each matter

2 The confidential exhibits are to be made available to the respondents for collection forthwith

Reasons for Decision:

1 The applicant has made applications to each of the respondent agencies pursuant to section 17 of the Freedom of Information Act 1989 (NSW) ("FOI Act"). Section 16 of the FOI Act provides that person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. The respondents have each refused access or given only limited access to the documents caught by the applicant's application on the grounds of legal professional privilege in clause 10 of Schedule 1 of the FOI Act.

2 Two applications under the FOI Act were made to the Environment Protection Authority ("EPA") (matters number 033039 and 033066), one was made to Cabonne Council (matter number 033060), and one to the Department of Infrastructure, Planning and Development (as it is now known, matter number 033123A). In short, the applicant sought documents relating to his property known as "Fernbank Orchards" at Orange in New South Wales. It was made in the context of an investigation of the applicant and commencement of a prosecution against the applicant by the EPA in the Land and Environment Court of New South Wales where the applicant was charged with an offence of causing pollution of waters on or about 7 January 2002. Exhibits one to five comprise the various FOI applications and the decisions of the respective respondents in each matter.

3 The privilege claimed in each matter is the EPA's privilege.

4 The particulars concerning each individual determination is before the Tribunal by way of detailed schedules. I do not propose to set them all out here. In summary, with respect to matter number 033039, the applicant was granted access to 36 documents, was given partial access to three documents and was refused access to 34 documents. In matter number 033066, the applicant was granted full access to one document, partial access to one document and was refused access to 16 documents. In matter number 033060, the applicant was refused access to documents (that were draft statements) and in matter number 033123A, the applicant was refused access to one document (a draft statement).

5 A hearing was conducted at the Tribunal on 2 July 2003. The respondents were represented by a barrister and the applicant appeared for himself. The Tribunal granted permission for the parties to file further written submissions after the hearing, which they did. At the hearing, the primary evidence for the respondent comprised an affidavit of Jacqueline Marie Moore sworn 6 June 2003. She is a solicitor employed by the EPA Legal Branch and had carriage of the water pollution prosecution matter. In that matter, the EPA was required to file and serve all of the evidence the prosecutor intended to rely upon by 18 February 2002. She identified certain persons who had sworn affidavits in the prosecution. They comprised various officers from each of the respondents in these FOI proceedings.

6 In her evidence, Ms Moore set out in a very detailed description of each of the disputed documents and gave evidence as to how each document came into existence. She did this in relation to all four proceedings. The disputed documents in each proceeding were tendered by the respondents as four confidential exhibits (exhibits six, seven, eight and nine). I have read each of those documents. I believe they can be fairly described as documents that were sent to a solicitor and documents that came from that solicitor's prosecution file in the context of an anticipated water pollution prosecution.

7 Ms Moore also gave oral evidence and was cross-examined by the applicant. She gave evidence concerning the structure of the Legal Services Branch of the EPA and the lawyers who worked there and gave further evidence involving some of the disputed documents. She also spoke of various notices to produce and subpoenas that were issued to the EPA in the Land and Environment Court in the water pollution proceedings at the request of the applicant whereby the applicant sought to obtain many of the very documents he was seeking to obtain in these FOI applications. Those applications did not go ahead. However, after the hearing, the applicant renewed his subpoena to the EPA in the Court.

8 The various motions, subpoena and notice to produce were tendered to the Tribunal and became exhibit 10. Also tendered was the class five summons in the Land and Environment Court proceedings (exhibit 11). Those documents were tendered without objection.

9 The applicant relied on two affidavits of his sworn on 17 June 2003 and on 1 July 2003. In the first affidavit, he annexed a copy of a further FOI application made to the EPA respondent. As that is not matter before me, I cannot take it into account. He also attached a High Court special leave application dated 17 June 1993 where the Police Force of Victoria unsuccessfully sought leave to appeal the decision in Sobh v Police Force of Victoria [1994] 1 VR 41. That case was about the Victorian Freedom of Information legislation and the issue was whether it would cause prejudice to the proper administration of the law for a particular police brief containing, inter alia, the summons and witness statements, to be given to the applicant. The Victorian Administrative Appeals Tribunal held that the police brief could be given to the applicant and the Appeal Division of the Supreme Court of Victoria agreed. It was held (for example at page 56) that the Victorian FOI Act abrogates, albeit in restricted circumstances, the existing immunity of police from giving pre-trial discovery of all documents to an accused or any other person. For present purposes, that decision has nothing to do with legal professional privilege (see page 73).

10 In his second affidavit, the applicant outlines the number of matters relating to his attempts to have the relevant documents located and in which he questioned the sufficiency of search of a number of the respondents. To the extent that I need to be satisfied, I am satisfied that the respondents in the present cases undertook adequate searches for the documents.

11 The applicant also relied on Commissioner of Police v Ombudsman [1988] 1 NZLR 385. However, that case of the Court of Appeal in New Zealand, and which was extensively discussed in Sobh's case, is not relevant to the present case in that it deals with the capture of a police brief under the New Zealand equivalent of the FOI Act and the question of prejudice to the maintenance of law. It did not concern legal professional privilege at all, the subject of the present cases.

12 After the hearing concluded, the applicant delivered to the Tribunal number of documents and submissions. On 24 July 2003, the applicant filed a copy of his affidavit concerning the Land and Environment Court subpoena sworn 22 July 2003. I have read that document and I have taken it into account. On 7 August 2003, the applicant filed lengthy written submissions which I have read. I acknowledge it is often difficult for FOI applicants to make submissions concerning documents they have not read as access has not yet been granted. On 22 September 2003 the applicant wrote to the Tribunal regarding the receipt of documents under further FOI applications since the hearing. I do not propose to take these matters into account in making this determination.

The Strike-Out Application

13 At the commencement of the hearing before the Tribunal, counsel for the respondents made an application pursuant to section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act") for the proceedings to be dismissed, grounds that they were frivolous or vexatious or otherwise misconceived or lacking in substance. It was argued that if they were not dismissed, they should be permanently stayed as an abuse of process due to the numerous applications for the production of documents in the then extant court proceedings. It was argued that the EPA had served on the applicant all the necessary documents and statements that would be appropriate in an ordinary criminal matter and that it was required to do no more in the Land and Environment Court. It was said that the applicant's FOI applications were an attempt to obtain discovery in criminal matter which was not permissible. The Tribunal was referred to Environment Protection Authority v Waight (No 2)(1999) 109 A Crim R 288 (at 289 & 291 and the cases cited therein) in this regard.

14 In submissions made subsequent to the hearing and filed on 9 July 2003, the respondents set out these arguments more fully. It was argued that there was a clear overlap between the documents sought in the FOI application and documents sought in the court proceedings. It was conceded that it is not abuse of process per se for a defendant in criminal proceedings to attempt to gain access to documents relating to the prosecution brief by resort to the provisions of the FOI Act. However, the respondents argued:

"[I]t is an abuse of process, or, alternatively vexatious and oppressive, when a person seeking access to documents under the FOI Act who at the same time is a defendant in concurrent criminal proceedings, attempts to use the FOI Act provisions to attempt to obtain discovery from the prosecutor in the criminal proceedings when it is clear that the person is not entitled to obtain discovery in the criminal proceedings. This is an abuse of process, because the applicant attempts to use the processes of the Tribunal to undermine the integrity of the concurrent processes in the Land and Environment Court summary proceedings."

15 The respondents relied on Johnson Tiles Pty Ltd v Esso Australia Ltd (No 3)(2000) [2000] FCA 495; 98 FCR 311 esp at 316-323 where Justice Merkel considered the limitations on FOI rights in the context of discovery in civil proceedings. Esso was seeking both civil discovery and was making applications under the Commonwealth FOI Act at about the same time. The Federal Court held that it could. The case was sought to be distinguished because the current proceedings in the Land and Environment Court were criminal proceedings and were not civil.

16 While these are significant submissions in the context of present case, I do not need to determine this application due to the way in which I have resolved the legal professional privilege matter. However, I think it was right for the respondents to raise the questions in the manner in which they did. Applicants should not be encouraged to both issue compulsory processes in the criminal courts in criminal or civil penalty matters and, simultaneously pursue FOI applications covering the same or substantially the same documents.

Legal Professional Privilege

17 As I have indicated, I have examined each of the disputed documents. It is plain to me from their face that they are properly the subject of legal professional privilege. The evidence of the EPA solicitor, which I accept, places the matter beyond any doubt. All the disputed documents in each matter are privileged within the meaning of clause 10, schedule 1 of the FOI Act. I accept the submissions of the respondents in this regard and I find that the documents were all created or requested to be created at a time when litigation was plainly contemplated or actually in the process of being commenced.

18 There is no reason why legal professional privilege cannot attach to confidential professional communications between government agencies and their salaried legal officers when undertaken for the sole purpose of seeking or giving legal advice in connection with anticipated litigation (Waterford v Commonwealth [1987] HCA 25; (1986) 163 CLR 54; see also Edlund v Commissioner of Police, New South Wales Police [2003] NSWADT 195). The proper test to apply is the dominant purpose test. In Eduland's case, the Tribunal's President put it this way (at [19]):

"In summary, the position is that it is necessary for the agency to demonstrate that the document in issue is one which was produced or brought into existence for the dominant purpose of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation then in reasonable prospect (per Barwick CJ in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 677 approved by the High Court in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67). See generally Charteris -v- General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39."

The Section 25(1) Question

19 As to whether the Tribunal should release the exempt documents in any event as a matter of the Tribunal's discretion in section 25(1) of the Act (see, Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [76] to [85], referred to there as the "override discretion"), I consider that to the extent that such a discretion may now be said to exist (see, Neary v The Treasurer, New South Wales [2002] NSWADT 261 at [67]), it is not appropriate in this case to release the disputed documents in any event as a matter of the Tribunal's discretion.

20 While the exempt documents here might be of some significant personal interest to the applicant (as they concern his prosecution), the documents are properly held by this Tribunal to be the subject of legal professional privilege. That is a significant finding. As the President of the Tribunal has stated in Gliksman v Director General, NSW Department of Health [2002] NSWADT 1 at [51]:

"The Tribunal should be extremely cautious in exercising any public interest "override" discretion that might be available under section 25 where legal professional privilege is involved: see Chief Executive, SAS Trustee Corporation v Daykin [2000] NSWADTAP 20 at [37]."

21 I do not consider the applicant has raised considerations sufficient as to warrant the general release of the documents under section 25 of the FOI Act. I cannot say that the documents here are innocuous. Many of them are substantial matters involving the seeking and the giving of legal advice and concerning criminal litigation legal work. Accordingly, if a s 25(1) discretion exists, I would not exercise it in the present case.

22 The Tribunal determines:

1. The reviewable decisions are affirmed in each matter.

2. The confidential exhibits are to be made available to the respondents for collection forthwith.