A council’s decision to withhold correspondence to and from the council’s in-house lawyers on the basis of client legal privilege has recently been the subject of a review under the Government Information (Public Access) Act 2009 (GIPA Act) before the Civil and Administrative Tribunal NSW (the Tribunal) in the case of Holman v Warringah Council [2015] NSWCATAD 215 (the Holman case). The judgment is available here.
In the Holman case the Council decided to refuse access to certain documents in connection with a stormwater drainage problem affecting Mr Holman’s property in the context of Mr Holman’s correspondence making it clear that he holds the Council responsible for the problem.
The judgment of the Holman case sets out some important points for in-house counsel of local councils to remember when seeking to establish client legal privilege over information. The decision also clarifies the process for whether to provide access to information which is subject to client legal privilege is claimed.
In these circumstances, the starting point for a GIPA Act application is sections 5 and 14 of the GIPA Act which provide that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s.5) and that it is conclusively to be presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 (s.14) [90].
One class of information that is subject to the conclusive presumption in s 14 is information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. An agency seeking to rely on that presumption is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on that basis: schedule 1, cl 5 [83].
The Tribunal clarified that the balancing test laid down in s 13 does not apply to client privilege as covered by schedule 1, cl 5. Further, the personal factors referred to in s 55, while they may be taken into account in considering whether client privilege should be waived (cl 5(2)), are not relevant to the application of the privilege [90].
The question whether the information in issue falls within client legal privilege depends on the application of ss 117 to 119 of the Evidence Act 1995 [84].
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer, or
(b) a confidential communication made between 2 or more lawyers acting for the client, or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or
(b) the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Assessing a claim for privilege under s 118 or s 119 is a two-stage process, the first being to be satisfied that the communication meets the requirements set out in ss 118 or 119 or both, and the second being for the decision-maker to be satisfied that production of the document would result in the disclosure of a confidential communication or the confidential contents of a document (Southland Coal Pty Ltd (receivers and managers appointed) (In Liq) [2006] NSWSC 899) [85].
The “legal advice” referred to in s 118 is a broad concept understood in a pragmatic sense. It is not confined to a lawyer’s telling the client the law, while acting in a professional capacity; it must also include advice as to what should prudently and sensibly be done in the relevant legal context [86].
In relation to the dominant purpose test, the Applicant’s submissions queried whether the correspondence was prepared for the purposes of legal advice, or as part of a solution. The Tribunal clarified that the dominant purpose of the communication must be determined objectively, having regard to all the circumstances in which the communication was made, and its nature. If the document or information would have been prepared irrespective of the intention to obtain professional legal services, it will not satisfy the test laid down in Grant v Downs (1976) 135 CLR 674, 688. The existence of an ancillary purpose is not fatal to a claim for privilege, but if there are two purposes of equal weight, it is unlikely that one would dominate the other: Southland Coal at [14]. A claim for privilege will not succeed if it appears that the document is a commercial document or was brought into existence in the ordinary course of business.
In the Holman case, most of the legal communications which the council sought to withhold are to, or from, the council’s in-house lawyers. It is well established that an in-house lawyer is entitled to claim privilege on behalf of his or her employer as a client. However, the Applicant called into question the role of the Council’s two in-house lawyers in light of the Court of Appeal comments in another case:
“An in-house solicitor is, by reason of his or her position, more likely to act for purposes unrelated to legal proceedings than an external solicitor who, in the normal course, has no relevant function other than that involving legal proceedings and/or legal advice. An in-house solicitor may very well have other functions” (Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 (at [24])).
The Tribunal considered the in-house lawyers contracts of employment which acknowledges the independence of the employees role as a corporate lawyer, that his or her obligations as a legal practitioner, including going to court, are paramount and prevail over duties to the council and undertakes to take practical steps to implement protocols to achieve the requisite independence.
The Applicant raised a question about whether information created by one of the lawyers whilst she was acting in another capacity (the council’s director of corporate services) could be privileged. The Court found that during the relevant times that she was acting in that capacity, all documents the subject of the GIPA application were expressed to come from, or be sent to, the other in-house lawyer, and thus are documents to which client legal privilege could be claimed.
For further information, please contact Tony Pickup of Local Government Legal on (02) 4922 2307
* The above information is not to be relied upon as legal advice.