Ward and Department of Corrective Services

Application number:
Decision date:
Friday, Jan 30, 2009

Ward and Department of Corrective Services
(210472, 30 January 2009)


Section 43(1) Legal Professional Privilege

The applicant applied for external review of the decision of the Department of Corrective Services (Department) to refuse him access to the matter in issue (four emails) on the basis that those emails were exempt from disclosure under section 43(1) of the Freedom of Information Act 1992.  The applicant claimed that the Department had previously provided him with copies of those emails (which were no longer in his possession) and on this basis, the Department had waived any legal professional privilege which had existed in those emails.

Applying the principles in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 and Mann v Carnell (1999) 201 CLR, 1 Acting Assistant Commissioner Jefferies decided that:

·          the emails comprised confidential communications between a legal advisor and client for the dominant purpose of obtaining or providing legal advice

·          as there was insufficient evidence to conclude that the Department had previously given copies of the emails to the applicant, she was unable to make a finding that the Department had either expressly waived legal professional privilege, engaged in conduct which was inconsistent with the maintenance of legal professional privilege such that waiver could be implied, or otherwise waived legal professional privilege.

Accordingly, that part of the decision under review relating to the matter in issue, was affirmed.