Norville v Pillar as administrator for State Authorities Superannuation Trustees Corporation [2005] NSWADT 4 (10 January 2005)

Last Updated: 18 January 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Norville v Pillar as administrator for State Authorities Superannuation Trustees Corporation [2005] NSWADT 4


PARTIES: APPLICANT
Charles Henry Norville
RESPONDENT
Pillar as administrator for State Authorities Superannuation Trustees Corporation



FILE NUMBERS: 043303

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 05/11/2004



DECISION DATE: 10/01/2005

BEFORE: Hennessy N - Magistrate (Deputy President)





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Superannuation Act 1916

CASES CITED: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49
Ralkon Agricultural Co Pty Ltd and Aboriginal Development Corporation 10 ALD 380
Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244
Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

APPLICATION: access to documents - legal professional privilege
Freedom of Information Act - access to documents - legal professional privilege

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
A Johnson, solicitor

ORDERS: Decision of Pillar that the eleven documents in dispute are exempt is affirmed.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 Pillar is the administrator of NSW public sector superannuation schemes. On 19 December 2003, Mr Norville, who was a fireman, applied to Pillar under the Freedom of Information Act 1989 (FOI Act) for "all documentation regarding the determination of my breakdown pension held by State Super and its peripheral admin. Including determination made under s 29 Superannuation Act 1916." Pillar gave him access to most of the documents on the file. Eleven documents are still in dispute. Pillar claims they are exempt because they contain matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. Mr Norville applied to the Tribunal for a review of the agency’s decision not to give him access to those documents because he wanted the Tribunal to independently review the documents and decide whether they were exempt. Pillar provided a copy of the disputed documents to the Tribunal on a confidential basis together with an affidavit and submissions supporting their decision. Mr Norville did not wish to provide any submissions in reply and agreed to the Tribunal deciding the matter "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

2 The eleven documents in dispute fall into three categories. Six of them are requests by Pillar for legal advice from the Crown Solicitors Office about its obligations under the FOI Act and the steps it needed to take to comply with Mr Norville’s application. Three of the documents contain legal advice provided to Pillar by the Crown Solicitors Office. The final document sets out the terms on which the Crown Solicitor was engaged by Pillar to provide legal advice; the nature of the advice sought and the costs which it was estimated would be involved in the provision of that legal advice.

Issue

3 The only issue is whether the eleven documents are exempt from disclosure because they are covered by Clause 10 to Schedule 1 of the FOI Act relating to legal professional privilege. Clause 10 simply states that:

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.

4 I have examined all the documents and read the submissions and affidavit from the Pillar.

Legal Professional Privilege

5 Documents 1, 3, 4, 5, 7 and 10 are requests by Pillar for legal advice from the Crown Solicitors Office about its obligations under the FOI Act and the steps it needed to take to comply with those obligations. Documents 6, 8 and 11 contain the legal advice provided by the Crown Solicitor through his employed solicitor to Pillar. All those documents are communications between a party (Pillar) and their professional legal advisors (the Crown Solicitor) which are confidential and which were made to or by the Crown Solicitor in his professional capacity with a view to requesting or providing legal advice or assistance. Consequently they fall squarely within one of the categories of legal professional privilege as outlined by Lockhart J in Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 245-246.

6 In Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, the High Court held that where the government is seeking legal advice from in house solicitors or from the federal equivalent of the Crown Solicitor, legal professional privilege applies as long as the agency’s legal adviser was providing "advice of an independent character notwithstanding [their] employment." (per Mason and Wilson JJ at 62). I am satisfied that the advice being provided by an employee of the Crown Solicitor in this case had that character. Secondly, the privilege will only attach to confidential, professional communications between government and their salaried legal officers. In this case the officers employed by the Crown Solicitor were consulted in their professional capacity as lawyers and there was a solicitor/client relationship between them and Pillar. Finally, the advice in this case was given by an employee of the Crown Solicitor in that person’s capacity as a legal advisor and does not relate to policy or administrative issues.

7 That situation can be contrasted, to some extent, with Document 2 which sets out the terms on which the Crown Solicitor was engaged by Pillar to provide legal advice, the nature of the advice sought and the estimated cost of that legal advice. This document could be described as setting out the terms of the Crown Solicitor’s relationship with Pillar. The question the Tribunal must ask is whether that document was created for the dominant purpose of a lawyer providing legal advice or assistance, or for use in legal proceedings. (Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49) Document 2 was created in response to a request for legal advice from Pillar. Its purpose was to specify some of the terms on which the Crown Solicitors Office was to act on behalf of Pillar. It was created pursuant to the relationship of solicitor and client, not pursuant to any other kind of relationship.

8 In Re Ralkon Agricultural Co Pty Ltd and Aboriginal Development Corporation 10 ALD 380 at 390 the Administrative Appeals Tribunal, writing when the test was the sole purpose, rather than the dominant purpose, said:

So long as the sole (now dominant) purpose for the existence of the document is a purpose which is covered by legal professional privilege, then the fact that it also fulfils a secondary need or function such as administrative efficiency or administrative requirements, does not erode that privilege. Sometimes that line may be hard to distinguish, but it nonetheless must be drawn. (Words in brackets added.)

9 In our view Document 2 was created for the dominant purpose of the Crown Solicitors Office providing legal advice to Pillar. The fact that it fulfilled a secondary need in relation to administration does not exclude it from coverage by the principle of legal professional privilege.

Order

10 The decision of Pillar that the eleven documents in dispute are exempt is affirmed.