QQ v Commissioner of Police, NSW Police Force (No.2) [2011] NSWADT 79 (18 April 2011)

Last Updated: 16 May 2011

Administrative Decisions Tribunal New South Wales

Case Title:	QQ v Commissioner of Police, NSW Police Force (No.2)
Medium Neutral Citation:	[2011] NSWADT 79
Hearing Date(s):	8 September 2010, 29 September 2010
Decision Date:	18 April 2011
Jurisdiction:
Before:	S Montgomery, Judicial Member
Decision:	The matters are to be listed for further directions on Tuesday 19 April 2011 at 9.30 am
Catchwords:	Summons to produce documents - legitimate forensic purpose - legal professional privilege
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
Cases Cited:	General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 Grant v Downs ([1976] HCA 63; [1976] HCA 63; 1976) 135 CLR 674 Howell v Macquarie University [2008] NSWCA 26 Priest v State of New South Wales [2006] NSWSC 1281 QQ v Commissioner of Police, NSW Police Force [2011] NSWADT 54
Texts Cited:
Category:	Procedural and other rulings
Parties:	QQ (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation
- Counsel:	Counsel: P Knowles, (Applicant) P Ginters, (Respondent)
- Solicitors:	Mitchell Lawyers (Applicant) Henry Davis York (Respondent)
File number(s):	093184 and 093252
Publication Restriction:	Section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 applies in relation to the identity of the Applicant.

REASONS FOR DECISION

1. In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as QQ.

2. The Applicant is a police officer who is currently suspended. He has commenced two proceedings against the Respondent in the Tribunal. Both proceedings arise from claims under the Privacy and Personal Information Protection Act 1998 (the 'PPIP Act').

3. Summonses have been issued in each of the matters and the Respondent objects to the production of documents on the basis of an apparent lack of legitimate forensic purpose, and/or that they are properly subject to a claim of client legal privilege.

4. The circumstances of the substantive matters are set out in the decision in QQ v Commissioner of Police, NSW Police Force [2011] NSWADT 54 that was published on 16 March 2011 ("the March 2011 decision"). I that decision I dealt with the issue of the question of legitimate forensic purpose. I was satisfied that there are concrete grounds for the Applicant's belief that the documents will assist his case.

5. The Respondent has sought clarification in relation to that finding in so far as it concerns the following documents:

(a) Ms W's response/submission relating to the disciplinary investigation 09/33 [Item 1 of the Applicant's summons dated 28 May 2010 in relation to ADT 093184];

(b) Police complaint file P0601488 relating to alleged unreasonable use of force by the Applicant [Item 1 of the Applicant's summons dated 28 May 2010 in relation to ADT 093252];

(c) Police complaint file P0702087 relating to alleged off-duty misconduct by the Applicant's [Item 2 of the Applicant's summons dated, 28 May 201 0 in relation to ADT 0932521.

6. The Respondent has sought clarification as to whether such documents are required to be produced pursuant to the summonses.

7. The conclusion in the March 2011 decision that I was satisfied that there are concrete grounds for the Applicant's belief that the documents will assist his case was intended to address each of those documents. I am satisfied that the Applicant has sought the issue of the summonses for a legitimate forensic purpose.

8. The Respondent has raised a public interest immunity claim in relation to many of the resisted documents. At this stage the Respondent is not required to produce those documents. A decision will be made with respect to that question after further argument is heard in relation to the public interest immunity claim.

9. These reasons address the issue of legal professional privilege raised by the Respondent that was not considered in the March 2011 decision.

Client Legal Privilege

10. The Respondent raised legal professional privilege claims in relation to documents forming part of the following categories of documents requested by the applicant:

(a) Entire Internal Review file of the Respondent's Office of General Counsel, relating to the Applicant's complaint which is the subject of matter No. 0931841 [Item 1 of the Applicant's summons dated 17 December 2009];

(b) Entire Internal Review file of the Respondent's Office of General Counsel and Central Metropolitan Region, relating to the Applicant's complaint which is the subject of matter No. 0932521. [Item 1 of the Applicant's summons dated 24 December 2009].

(c) Entire Police complaint file P0803603, including investigation file of the Professional Standards Command, relating to criminal fraud allegations against the Applicant [Item 2 of the Applicant's summons dated 24 December 2009]: and

(d) Entire suspension file, including all welfare information and documents, relating to the Applicant [Item 7 of the Applicant's summons dated 24 December 2009].

11. Section 125 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") relates the application of the ADT Act to privileged documents:

(1) Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995:

(a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence,

(b) section 10 (Parliamentary privilege preserved),

(c) Part 3.10 (Privileges) of Chapter 3. (2) In this section:

disclosure of a document includes the following:

(a) the provision of copies of the document,

(b) the granting of access to the document,

(c) the disclosure of the contents of the document. document includes a part of a document.

NSW court has the same meaning as it has in the Evidence Act 1995.

12. Part 3.10 of Chapter 3 of the Evidence Act 1995 relates to client legal privilege.

13. The Respondent bears the onus of establishing the claim for legal privilege. It must establish the facts which give rise to the claim for privilege: Grant v Downs ([1976] HCA 63; [1976] HCA 63; 1976) 135 CLR 674.

14. The Applicant challenges the Respondent's claim for privilege. He submits that the documents will not be privileged unless they were brought into existence for the dominate purpose of obtaining legal advice or for use in litigation. He further submits that documents created for administrative purposes would not ordinarily attract privilege, even if they were created by a lawyer or subsequently become relevant in litigation. He contends that this includes documents prepared for internal police investigations. In support of that submission Mr Knowles relies on views expressed by Johnson J in Priest v NSW [2006] NSWSC 1281 at [31] and [49].

"31 In Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, Gleeson CJ, Gaudron and Gummow JJ observed at 65 [37] that it is commonplace for a document to be brought into existence for a multiplicity of purposes, especially in large corporations or bureaucracies which will often have their own internal legal staff. Their Honours referred (at 66 [38]) to Waugh v British Railways Board [1979] UKHL 2; (1980) AC 521 where a report of an internal inquiry into a railway accident was prepared for two purposes - to assist the Board to decide whether there was a need to revise safety and operational procedures and to obtain legal advice in anticipation of litigation. In neither case was the obtaining of legal advice or assistance the dominant, let alone the sole, purpose of bringing the documents into existence, and it was observed that the conditions of ss.118 and 119 Evidence Act 1995 would not have been satisfied. If the most that could be said of a report is that the purposes for which it came into existence included a purpose of obtaining legal advice or assistance, then privilege will not apply: Esso at 69 [50].

...

49 To uphold the claim for privilege, I must be satisfied that the predominant, prevailing or paramount purpose for which the document was brought into existence was the provision of legal advice. I am not so satisfied."

15. It is not in dispute that the privilege is that of the client, not of the lawyer. In General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 McColl JA (with whom Handley JA and Hodgson JA agreed) said at [67] - [68]:

67 Legal professional privilege is a rule of substantive law which enables a person to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (at [9]) per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Esso Australia Resources Ltd v Commissioner of Taxation.

68 The rationale of legal professional privilege is "that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline...

16. The Respondent will not discharge this onus by simply asserting the privilege, it must establish the facts which give rise to the claim for privilege: In Priest v State of New South Wales Johnson J stated:

19 Client legal privilege will be found with respect to confidential documents made for the dominant purpose of a lawyer providing legal advice or for the dominant purpose of a lawyer providing legal services relating to litigation: ss.118, 119 Evidence Act 1995.

20 Assessing a claim for privilege under s.118 or s.119 is a two-stage process. The first step is for the Court to be satisfied that the communication or contents, disclosure of which is sought to be prevented, satisfies the requirements set out in s.118 or s.119 or both sections. The second step is for the Court to be satisfied that the production of the document, or the unredacted part of it, would result in the disclosure of a confidential communication or the confidential contents of a document: Re Southland Coal Pty Limited [2006] NSWSC 899 at [14](b).

21 The onus of establishing the claim for client legal privilege falls on the party asserting or claiming the privilege and is met by establishing the facts giving rise to the claim... What is required is exposure of facts from which an informed decision can be made as to whether the claim for privilege is supportable... The facts are to be proved on the balance of probabilities: s.142 Evidence Act 1995..

17. In Howell v Macquarie University [2008] NSWCA 26 the Court of Appeal said:

[72] The purpose for which a document is brought into existence is a question of fact: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at [5], 692 per Jacobs J; Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [10], 66 per Mason and Wilson JJ; [14], 78 per Brennan J. While sometimes direct testimonial evidence from the person who created a document concerning the purpose which it was brought into existence can be both relevant and important, there is no requirement, even in a court of law, for the purpose with which a document was brought into existence to be proved in this way. Sometimes, an examination of the document itself can be enough to establish the dominant purpose with which it came into existence. That is often the case with a brief to counsel to advise, or a memorandum of advice from counsel, that deals with no topic other than the giving of advice. Sometimes, examination of the circumstances in which a particular document has been produced might show that even though the document considered on its own looked like legal advice, or a request for legal advice, there were other extraneous circumstances that led to the conclusion that it was produced with a dominant purpose other than one which would make the document privileged. It is a question of fact, involving weighing such evidence as is available, whether in any particular case a document was produced with a dominant purpose of giving or obtaining legal advice or the provision of legal services.

18. With respect to the claim of legal privilege the Respondent relies on sworn statements of Mr Frank Gaha, a solicitor employed by the Respondent and who was the internal legal adviser to the Respondent in relation to the Applicant's internal review applications. The Respondent also relies on a sworn statement of Inspector Colin Kennedy, a solicitor employed by the Respondent who was a Solicitor in the Operational Legal Advice Unit, Legal Services. In the capacity as a solicitor, he was requested from time to time to provide legal advice to several of the Respondent's staff.

19. A claim of legal privilege is made in relation to documents produced to the Tribunal. The Respondent agreed to the Tribunal inspecting the documents to assist it in determining the Respondent's claim. I have taken the opportunity to inspect those documents.

20. With a single exception, I am satisfied that the documents that I have inspected represent confidential communications or the contents of confidential documents prepared for the dominant purpose of the provision of legal advice in relation to the Applicant's complaints. I agree with the Respondent's categorisation of the documents as including:

i. advice and assistance in relation to and arising as a consequence of the statutory obligations relating to the undertaking of internal reviews; and

ii. advice and assistance in relation to the production of a statement of reasons arising from an internal review.

21. The exception to this view is the document referred to in paragraph 7(d) of the statement of Mr Gaha dated 2 September 2010. I invite the Respondent to provide further evidence to support its claim in relation to that document.

22. The Respondent has provided complete and redacted copies of the documents referred to in the statement of Inspector Kennedy. I have taken the opportunity to inspect those documents and I am satisfied that the redacted parts of those documents represent confidential communications or the contents of confidential documents prepared for the dominant purpose of the provision of legal advice.

23. With the exception of the document referred to in paragraph [21] of these reasons I am satisfied that the Respondent's claim of legal privilege is made out in relation to documents that were lodged with the Tribunal and which are the subject of the evidence of Mr Gaha and Inspector Kennedy that was filed on behalf of the Respondent.

24. As was advised in the March 2011 decision, the matters are listed for further directions on Tuesday 19 April 2011 at 9.30 am.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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