Ozcare and Department of Justice and Attorney-General (310107)

Application number:
310107
Decision date:
Friday, May 13, 2011

Ozcare and Department of Justice and Attorney-General

(310107, 13 May 2011)

 

Section 47(3)(a), section 48, schedule 3 section 7 of the Right to Information Act 2009(Qld) - Legal Professional Privilege

 

The applicant applied to the Department of Justice and Attorney-General (Department) for access to documents concerning itself, including its relationship with a third party (Third Party). The Third Party is engaged in litigation with the applicant. 

 

Prior to the litigation commencing, the Third Party, through its solicitors, had informed the Attorney-General by letter of its proposed proceedings against the applicant.  The Attorney-General sought further information from the Third Party, which was provided by letter from the Third Party’s solicitors. 

 

The Department refused access to the two letters (information in issue) under sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that it was exempt from disclosure as it would be privileged from production in a legal proceeding on the ground of legal professional privilege (LPP).

 

The applicant contended that:

 

·       the information in issue was not subject to LPP because it did not comprise confidential communications between a party’s solicitor and a third party and was not created for the dominant purpose of use in litigation; and

·       in respect of part of the information in issue, comprising legal advice given to the Third Party by its legal representatives (Legal Advice) – any LPP subsisting in the Legal Advice was waived by the Third Party providing that advice to the Attorney-General.

 

Having considered the parties’ submissions and the relevant law, Right to Information Commissioner Mead was satisfied that the information in issue satisfied the requirements for LPP.  Specifically, the communications were intended to be and remained confidential.  On this point, the decision in Seven Network Limited and Anor v News Limited[2005] FCAFC 12 was distinguishable.  The communication was for the dominant purpose of the Third Party obtaining legal advice in respect of its litigation, which was reasonably anticipated at the time. 

 

With respect to the applicant’s submission that the Third Party had waived any LPP subsisting in the Legal Advice by providing it to the Attorney-General, Right to Information Commissioner Mead was satisfied that the disclosure was for a specific and limited purpose which was not inconsistent with the confidentiality of the Legal Advice and this limited disclosure did not prevent the Third Party from maintaining the privilege against the applicant. 

 

Right to Information Commissioner Mead found that the information in issue would be privileged from production in a legal proceeding on the ground of LPP and the LPP subsisting in the Legal Advice had not been waived.  Accordingly, Right to Information Commissioner Meadaffirmed the Department’s decision.