Australia: NSW Government Bulletin - 3 February 2016

Last Updated: 7 February 2016
Article by Sylvia Fernandez (formerly with Holding Redlich), Christine Jones and Kim Nguyen

Most Read Contributor in Australia, September 2018

Change of date – 2016 NSW Government Lawyers Day
Please note, having regard to the NSW Government Legal Services Panel tender period, Holding Redlich's third annual NSW Government Lawyers Day will now be held in July. Stay tuned for further information soon about dates and session topics.

Snapshot of a recent decision on privilege arising in the in-house government context

In this edition we look at a recent decision of the NSW Civil and Administrative Tribunal Appeals Division dealing with privilege. In Kreutzer v University of Sydney [2015] NSWCATAD 270 the Tribunal dismissed an application for the review of a decision by the university to refuse access to certain information held. The applicant had lodged an access application under the Government Information (Public Access) Act 2009 (GIPA Act) which sought information from the university following its decision to terminate a medical program in which his daughter had hoped to participate.

The GIPA Act application sought various documents relating to the agreement between the university and another university regarding the Pathways program which guaranteed 10 rural students enrolment in the university's medical school as well as all relevant internal communications. The university released some of the information requested but withheld the balance on the grounds that client legal privilege attached.

The Tribunal dismissed all five main arguments raised by the applicant.

Firstly, it was argued that under s 118 of the Evidence Act 1995, the communications must be between or among parties who include at least one lawyer in order for legal professional privilege to apply. The Tribunal held that:

"...if two or more non-lawyers communicate about a confidential communication between the client and a lawyer or between two or more lawyers, the privilege will attach because divulging the communication between the non-lawyers would result in the disclosure of the communication from or to a lawyer"

Secondly, it was argued that the in house lawyers lacked the requisite independence for their communications to be treated as privileged because they reported to the university's general counsel who was also an adjunct professor of law. The university led evidence that the general counsel's reporting to the vice chancellor was administrative in nature and entailed no supervision of any legal work performed by his office. The Tribunal found this was sufficient to raise a prima facie inference that the general counsel and his staff possessed the necessary degree of independence. The applicant adduced no evidence as to what duties fell on the general counsel as an adjunct professor. Accordingly the Tribunal found that the primary inference stood.

Thirdly, it was contended that legal professional privilege could not attach to communications which predated the applicant's first letter mentioning compensation and the possibility of litigation. Evidence was led that the earlier correspondence contained a number of features that the university regarded from experience as indicators of a legal claim. They included that the early correspondence:

  • was on behalf of a person who had been refused admission and believed she had suffered a detriment
  • came from a parent of a prospective student
  • was written by a parent who was a lawyer
  • contained the words "change of position" which usually meant that the university was being set up for litigation.

The university had also learned from experience that admission matters in the medical faculty were more likely to lead to legal disputes than any other discipline. The Tribunal held that the dominant purpose of the communications was the obtaining of legal advice. The Tribunal's analysis of the documents themselves confirmed this.

Fourthly, it was alleged that at the time of the relevant communications there was no reasonable expectation of litigation. This argument failed given the findings on the first argument.

Lastly, it was argued that in denying any obligations under the Pathways program and by defeating the prospective student's application for admission by substituting discretionary processes and requirements, client legal privilege was lost by reason of fraud or abuse of power under s 125 of the Evidence Act 1995. This was held to require a high level of intentional wrongdoing, such that something approaching an actual conspiracy would be necessary for this exceptional circumstance to be established. The Tribunal found that the evidence did not support an inference that a deliberate abuse of power had occurred.

The matter confirms the trend towards attacking in-house independence on a 'two hats' basis. The university may have been assisted in the third argument had it made a contemporaneous note of its consideration that the early correspondence was indicative of potential litigation and the reasons why.

To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this link. Membership is open to lawyers employed in the public sector.

In the media

Billion dollar social and affordable housing fund to deliver better outcomes
The NSW Government has officially launched its social housing fund, which in its first phase will deliver an additional 3,000 social and affordable homes and slash waiting lists for vulnerable families. More...

Stronger councils for Sydney and regional NSW
Improved infrastructure and services and stabilised rates will make ratepayers the big winners under a proposal for 35 new councils in NSW, unveiled by NSW Premier Mike Baird and Minister for Local Government Paul Toole today. More...

Former mining executive who misled ICAC likely to avoid jail
Former Doyles Creek Mining chairman John Maitland is unlikely to be sentenced to imprisonment for misleading the ICAC, a Sydney court hears (29 January 2016). Former mining executive who misled ICAC likely to avoid jail

Free mediation takes heat out of neighbour disputes
CJC's mediations provide a safe and neutral environment for people in dispute to put forward their point of view and listen to the concerns of others. The service is available state wide and CJCs will arrange a session at a convenient location for all involved (24 January 2016). Free mediation takes heat out of neighbour disputes

Increased State Funding for Women's Domestic Violence Court Advocacy Services
Legal Aid NSW has welcomed a 20% increase in state government funding for its Women's Domestic Violence Court Advocacy Services, which provides court-based support services for victims of domestic violence (19 January 2016) Legal Aid NSW's media release

LSNSW Urges Action on Court Funding
The (LSNSW has urged the state government to ensure adequate funding to address trial court backlogs. LSNSW President Gary Ulman added that the funding needed to provide for "sufficient permanent judicial officers and court resources available at all levels of the judiciary (14 January 2016). LSNSW's media release

Community to benefit from improved online RSA
Online Responsible Service of Alcohol (RSA) training will resume in NSW with much higher standards designed to balance quality training and access to providers (14 January 2016). Community to benefit from improved online RSA

Educating against corruption
In addition to investigating and exposing corruption, the principal functions of the NSW Independent Commission Against Corruption are to prevent corruption and educate people about the detrimental effects of corruption. These functions are set out in the Independent Commission Against Corruption Act 1988 (12 January 2016) Educating against corruption

Google search puts NSW Medical Council on the wrong side of privacy laws
A NSW tribunal has ruled that the state's Medical Council breached privacy laws when it published what it thought was a redacted PDF document on its website, but in doing so revealed the hidden identities of a doctor and her son to Google's web crawling bot (08 January 2016). More...

Progress in ending the violence in NSW
A new report shows the NSW Government is delivering a raft of innovative reforms aimed at changing the way the justice system tackles domestic violence and supports victims (23 December 2015). Progress in ending the violence

ICAC finds former RFS officer and supplier corrupt

The ICAC has found that former Rural Fire Service contracts officer (Arthur) John Hacking engaged in serious corrupt conduct by accepting more than $408,000 from catering supplier Scott Homsey in payments intended to influence him to exercise his official functions in favour of Mr Homsey (17 January 2016) ICAC finds former RFS officer and supplier corrupt

In practice and courts

Latest HCA Bulletin
The HCA has published High Court Bulletin [2015] HCAB 10 (22 December 2015)

ICAC Prosecution outcomes and briefs with the DPP
Tables listing briefs with the Director of Public Prosecutions, and outcomes of ICAC-related prosecutions. Updated 21 December 2015. Prosecution outcomes and briefs with the DPP

NSW IPC CEO Update Dec 2015
18 December 2015
IPC CEO Update Dec 2015

NSW Parliament: committees - Inquiries receiving submissions
Inquiry into the Management of NSW Public Housing Maintenance Contracts, closes 5 February.
Inquiry into Sexualisation of children and young people, closes 5 February.
Inquiry into elder abuse in New South Wales, closes 12 February.
Inquiry into Legislative Council committee system, closes 6 March.
Inquiry into Reparations for the Stolen Generations in New South Wales, closes 10 March.

LSNSW Submissions
The LSNSW has released the following submissions on various topics:
Inquiry into the Fair Work Amendment (Gender Pay Gap) Bill 2015 (6 January 2016), which supports an amendment proposed by the Fair Work Amendment (Gender Pay Gap) Bill 2015 (Cth) to address the gender pay gap;
Statutory Review of the Relationships Register Act (2010) NSW (6 January 2016); and
A review of training for licensed occupations in the NSW property services industry (18 January 2016).

NSW Consultation: Review of the Guardianship Act 1987
The Department of Justice (DoJ) has made available the Terms of reference (undated) (the ToR) for its review of the Guardianship Act 1987 No. 257 (NSW) for public comment. Comments on the ToR should be sent to the DoJ by 21 March 2016. Further information from the DoJ

JUDCOM
Sentencing Bench Book: Update 33 Dec 22, 2015

NCAT
Telephone hearings fact sheet now available (21 January 2016)
Tenancy law changes for public housing antisocial behaviour (21 December 2015)

Cases

ZAG v NSW Trustee and Guardian [2016] NSWCATAP 19
APPEAL – procedural fairness – 2 days' notice of hearing inadequate – urgency does not justify short notice - failure to adequately disclose material prior to hearing – failure to suggest an adjournment STATUTORY INTERPRETATION – meaning of phrase "given reasons for the decision" in r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 – applicability of posting rule presumption. More...

Turner v Commissioner, Corrective Services NSW [2016] NSWCATAD 15
PROCEDURAL FAIRNESS – apprehended or actual bias. More...

Kreutzer v University of Sydney [2015] NSWCATAD 270
GOVERNMENT INFORMATION PUBLIC ACCESS –client privilege –in-house lawyers –independence -communications among non-lawyers –improper purpose. More...

Nightingale v Blacktown City Council [2015] NSWCA 423
TORTS – negligence – injury suffered after fall caused by sunken area of footpath – whether Council liable for failure to repair TORTS – Civil Liability Act 2002 (NSW), s 45 – whether Council had "actual knowledge" of the particular risk the materialisation of which resulted in harm STATUTORY INTERPRETATION – Civil Liability Act 2002 (NSW), s 45 – meaning of "actual knowledge" of Council – whether required knowledge of particular class of persons – whether knowledge of those with authority to conduct repairs required – sufficiency of knowledge of those involved in system of inspection STATUTORY INTERPRETATION – Civil Liability Act 2002 (NSW), s 45 – whether protection extends to inspections carried out negligently COURTS – principles relating to departure from prior authority More...

SA v New South Wales Crime Commission [2015] NSWSC 1979
ADMINISTRATIVE LAW – judicial review – decision of Crime Commission to issue examination summons – application for copy of decision and statement of reasons – Uniform Civil Procedure Rules 2005 (NSW) r 59.9 – Crime Commission Act 2012 (NSW) s 24 – whether Crime Commission is required to provide copy of decision and reasons – secrecy provisions exempting production of document "in any court" – Crime Commission Act 2012 (NSW) s 80(3) – Court's discretion to make order – confidential nature of examination – no requirement for administrative body to give reasons – procedural fairness – public interest immunity WORDS AND PHRASES – "to produce in any court" – Crime Commission Act 2012 (NSW) s 80(3) COSTS – prospects of success – merits of application. More...

Cook v City of Sydney [2015] NSWSC 1904
ADMINISTRATIVE LAW – Judicial Review – Review of the decision of medical panel – Where error conceded – Where statutory provision provided a mechanism to correct error – Whether such provision gave the plaintiff an equally convenient and beneficial remedy – Whether court should exercise discretion to refuse the relief sought in those circumstances. More...

Western Sydney Local Health District v Chan [2015] NSWSC 1968
ADMINISTRATIVE LAW – judicial review – decision of Appeal Panel constituted under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether finding that Approved Medical Specialist had considered all relevant material in assessing Whole Person Impairment was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds". More...

Legislation

NSW

Proclamations commencing Acts

Gaming and Liquor Administration Amendment Act 2015 No 56 (2016-45) — published LW 29 January 2016

Regulations and other miscellaneous instruments

Gaming and Liquor Administration Amendment (Review of Delegated Decisions) Regulation 2016 (2016-47) — published LW 29 January 2016

Public Finance and Audit Amendment (Legal Profession Uniform Law) Regulation 2016 (2016-55) — published LW 29 January 2016

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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