Queensland Law Society Inc. and Legal Ombudsman; Hewitt (Third Party)

Application number:
1996 S0010
Decision date:
Wednesday, Jun 24, 1998
(1998) 4 QAR 328

Queensland Law Society Inc. and Legal Ombudsman; Hewitt (Third Party)
(1996 S0010, 24 June 1998)

Queensland Law Society Inc. and Legal Ombudsman; Hewitt (Third Party)
(1996 S0074, 24 June 1998)

Hewitt and Queensland Law Society Inc.
(1997 S0103, 24 June 1998) 

These cases arose out of three applications made by Hewitt to obtain access to documents concerning the handling by the Queensland Law Society Inc (the QLS) of formal complaints of unprofessional conduct made to it by the applicant against a solicitor who had acted on the Hewitt's behalf in a number of matters. Three main issues concerning the application of s.43(1) of the FOI Act arose for my determination: 

(a)   whether disclosure by the QLS to Hewitt of a summary of a legal opinion obtained by the QLS, and which the QLS said it had 'adopted' in resolving to take no formal action in respect of Hewitt's complaint, gave rise to an imputed waiver of the legal professional privilege that would otherwise attach to that legal opinion; 

(b)   whether certain opinions and recommendations expressed in five memoranda prepared by a salaried legal officer of the QLS, were communications for the purpose of providing legal advice or assistance on a professional matter referable to the relationship of a lawyer and client, or communications made merely in the capacity of an employee; and 

(c)   to the extent that those communications fell into the first category described in (b), whether the communications satisfied the 'sole purpose' test to attract legal professional privilege. 

With respect to (a), the Information Commissioner decided, after an analysis of relevant authorities, that the principles of imputed waiver of privilege could apply in the context of extra-curial disputes, by reference to some act or omission of the privilege holder which, though falling short of intentional waiver, is inconsistent with maintenance of the privilege, and by reference to what ordinary notions of fairness require having regard to all of the relevant circumstances attending the extra-curial dispute. 

Having regard to the responsibilities of the QLS in discharging its functions as a regulatory authority in dealing with complaints against solicitors, the Information Commissioner decided that the conduct of the QLS in purporting to 'adopt' a privileged legal opinion (while disclosing only a summary of its conclusions) as the basis for its decision that Sir Lenox Hewitt's complaint did not disclose a case of unprofessional conduct against his former solicitor, should not in fairness be allowed to make the QLS's adopted reasons for decision effectively unexaminable.  The Information Commissioner decided that it would be unfair not to impute a waiver of the privilege otherwise attaching to the legal opinion in issue.

Turning to the five memoranda prepared by the salaried legal officer of the QLS, the Information Commissioner found that there was some matter in the memoranda that was not properly referable to a professional relationship of solicitor and client as between the legal officer and the QLS, but rather was provided by her in her administrative capacity as an employee. 

While the Information Commissioner found that some of the information contained in three of the memoranda did consist of legal opinion or advice, the Information Commissioner decided that none of those memoranda was brought into existence for the sole purpose of providing legal advice or professional legal assistance. Each memorandum, considered as a whole document, was brought into existence for at least one non-privileged purpose. In reaching this conclusion, the Information Commissioner was constrained to follow the majority view in Waterford v Commonwealth (1987) 163 CLR 54 which requires a consideration of the purpose(s) for the creation of a document as a whole, rather than any severable part of a document. Consequently, neither the segments of legal advice, nor any other matter contained in the memoranda, attracted legal professional privilege. 

The Information Commissioner further found that none of the matter in issue contained in the five memoranda qualified for exemption under s.41(1) of the FOI Act. Some of it merely consisted of factual matter which was not eligible for exemption under s.41(1) by virtue of s.41(2)(b). The balance of the matter in issue in the five memoranda was 'deliberative process' matter within the terms of s.41(1)(a) of the FOI Act. However, the Information Commissioner found that disclosure of that matter would not be contrary to the public interest in the efficient and effective performance of the QLS's regulatory functions, and hence that it did not qualify for exemption under s.41(1) of the FOI Act.  The Information Commissioner also dismissed claims by the QLS that the matter in issue in the five memoranda qualified for exemption under s.40(a), s.42(1)(a), s.42(1)(e) or s.42(1)(h) of the FOI Act. 

The QLS lodged an application for judicial review which was confined to that part of my decision which dealt with the issue of imputed waiver of privilege. The judicial review application was heard in the Supreme Court on 15 October 1998 by Williams J, who reserved his judgment. 

[NOTE: In a judgment delivered on 29 October 1998, Mr Justice Williams of the Supreme Court of Queensland dismissed the Society's application. In his decision, Williams J held that the Society had made such use of the legal opinion that it would be unfair or misleading to allow it to maintain a claim of legal professional privilege for the opinion. 

- Queensland Law Society Inc v Albietz & Anor, No. 6571 of 1998, Williams J, 29 October 1998, unreported.]