Exit Distraction Free Reading Mode
- Unreported Judgment
Stafford v Information Commissioner QCATA 61
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Stafford v Information Commissioner & Anor  QCATA 61
INFORMATION COMMISSIONER (First Respondent)
QUEENSLAND POLICE SERVICE
10 May 2019
30 September 2016; 22 June 2017
ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – GROUNDS FOR REFUSAL – right to information – where application to QCAT for review of decision – where finding by Information Commissioner (IC) that a report prepared by the second respondent was privileged – where other exemptions raised but not determined by IC - whether error of law in the IC’s determination – whether legal professional privilege attached to the report – whether legal professional privilege had been waived – whether matter required to be remitted
Right to Information Act 2009 (Qld), s 23, s 41, s 46, s 47, s 48, s 100, s 119, s 122, Schedule 3
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146
Attorney-General (NT) v Maurice (1986) 161 CLR 475, distinguished and applied
Commissioner of Australian Federal Police v John Galway & Anor v Constable & Ors  QSC 180, cited
Great Atlantic Insurance Co v Home Insurance Co  2 All ER 485, cited
Lord Ashburton v Pape  2 Ch 469, cited
Mann v Carnell (1999) 201 CLR 1, distinguished and applied
The Commonwealth of Australia v John Fairfax & Sons Pty Ltd (1980) 147 CLR 39, cited
Spedley Securities Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711, applied
J Crowley, instructed by Karsas Lawyers (30 September 2016)
PJ McCafferty, instructed by Karsas Lawyers (22 June 2017)
T Lake, employee of the Office of the Information Commissioner (30 September 2016)
TS Kemp, employee of the Office of the Information Commissioner (22 June 2017)
GP Sammon, instructed by the Crown Solicitor for the State of Queensland
REASONS FOR DECISION
- The appeal is against a decision of the Right to Information Commissioner, as a delegate of the Information Commissioner (IC), dated 18 February 2016.
- The decision denied access by the applicant, Mr Stafford, to a report produced by the second respondent, the Queensland Police Service (QPS).
- The applicant had applied to the QPS under the Right to Information Act 2009 (Qld) (RTI Act) for access to “all documents in relation to QPS review of the investigation into the 1991 murder of Leanne Holland”. The QPS had considered that the work involved in processing the application would substantially and unreasonably divert its resources and therefore sought to refuse to deal with the access application under s 41 of the RTI Act. The QPS did not make its decision within the relevant process period and therefore was taken to have made a decision refusing access to information as requested by the applicant. The deemed refusal is taken to have been made under s 46(1)(a) of the RTI Act.
- The applicant applied to the Information Commissioner for external review of the deemed refusal. Before the IC conducted the review, the applicant agreed to narrow his application to the report prepared by the QPS documenting its review of the investigation (Report).
- The Report is a 531 page document which was provided by the QPS to the Director of Public Prosecutions (DPP).
- Before the IC, the QPS’s case was that the dominant purpose for the creation of the Report was submission to the DPP for the purpose of obtaining legal advice.
- The applicant submitted that the dominant purpose motivating the Report’s creation was not the seeking of legal advice, “but rather to formalise and summarise the findings of the review of the murder of Leanne Holland”. Further, it was submitted that the DPP cannot stand in the position of independent legal advisor to the QPS.
- The IC determined that:
- (a)The DPP may stand in the position of professional legal advisor to agencies, such as the QPS, and communications to and from the DPP may attract legal professional privilege, provided the communications otherwise meet the requirement for the privilege;
- (b)There is no question the Report is confidential as against the applicant; and
- (c)By the time of its production, the dominant purpose was submission to the DPP for the purpose of obtaining legal advice.
- In the reasons for decision, the IC accepted that the dominant purpose for the Report’s creation initially may well have been for a non-privileged purpose of the kind identified by the applicant but having carefully scrutinised the Report, the IC considered that “the dominant purpose for its creation or production was, by the time of that production, a privileged purpose: submission to the DPP so as to enable legal advice.” In reaching that conclusion, the IC relied on the decision of Holmes J in Galway & Anor v Constable & Ors.
- In reaching her decision, the IC found that the Report contained “express conclusions firmly pointing towards its future use in the obtaining of legal advice (such use which …. subsequently transpired).”3
- The IC varied the decision the QPS was deemed to have made refusing access to the Report under s 46(1)(a) of the RTI Act and found that access to the Report may be refused under s 47(3)(a) of the RTI Act.
- Pursuant to s 119 of the RTI Act, the appeal against the decision of the IC “may only be on a question of law”. Further, the appeal may only be by way of rehearing. The appeal must be conducted in accordance with the QCAT rules and procedures.
- The appeal is stated to be on the following grounds:
- The [IC] erred in its finding that the Report attracts legal professional privilege.
- The Report was not produced or brought into existence for a particular dominant purpose to ascertain facts upon which legal advice would be based and the IC erred in finding that this attracted legal professional privilege.
- The IC erred in finding that the Report’s creation was for the seeking of legal advice; rather it was to formalise and summarise the findings of the review of the murder of Leanne Holland.
- The issue in dispute was how to characterize the Report. That is a question of law.
The Right to Information Act
- Section 23 of the RTI Act confers a general right of access to documents of an agency. The right is subject to a number of exclusions, including those prescribed by s 47 of the RTI Act.
- Under s 47(3)(a) and s 48 of the RTI Act, an agency may refuse access to documents to the extent that they comprise exempt information. Schedule 3 of the RTI Act sets out the categories of exempt information. Exempt information, by item 7 of Schedule 3, includes information that would be privileged from production in a legal proceeding on the ground of legal professional privilege.
- Legal professional privilege may be relied upon by a person to resist the giving of information or the production of documents which would reveal communications between a client and a lawyer for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.
- In making its submissions in the appeal, the applicant accepted that the DPP may stand in a professional relationship of legal adviser to client in respect of clients such as a government agency. Referring to a previous decision of the IC in Price v DPP, a decision relied on by the IC in making her decision, the applicant accepted that the relationship of solicitor/client may exist between the QPS and the DPP. The applicant said that each case must be decided on its own facts.
- The applicant submitted that in communicating the Report to the DPP, the QPS were not seeking legal advice for themselves or their agency but were providing information they considered sufficient to justify re-prosecuting Mr Stafford for murder. It was submitted that, “Had the DPP decided to retrial Mr Stafford they would not have ‘taken instructions’ from the QPS in relation to that litigation.” It was submitted that the DPP is “entirely independent of political and executive interference, and of the investigative agency.”8 It was said that the Report was produced in the ordinary course of the activities of the QPS in communicating with the DPP regarding potential prosecutions.
- Further, it was submitted that, in any event, the dominant purpose was not for the obtainment of legal advice. The purpose, it was said, was:
- (a)to formalise and summarise the findings of the review of the murder of Leanne Holland; alternatively
- (b)to provid[e] the information to the prosecuting body that justified Mr Stafford being tried for murder; or
- (c)for the dual purpose of providing the information that justified Mr Stafford being tried for murder and seeking the DPP opinion on the relevance, weight and admissibility of that material.
- In referring to the decision of Galway, it was said that here “a government agency tasked with investigating crimes” was providing “the fruits of an investigation to the body tasked with prosecuting those crimes”, whereas in Galway the only reason for the private firm, SimsMetal, to be communicating with the solicitor’s firm was for the purpose of obtaining legal advice.
- The QPS contended that the purpose of the Report changed over time. The QPS acknowledged the applicant’s assertion that the Report was for the potential retrial or re-prosecution of Mr Stafford.
- It was said that whether there is sufficient evidence to prosecute or charge a person is an appropriate subject of which legal advice can be sought. The QPS relied on the IC’s conclusion that the Report was produced for obtaining legal advice.
- The fact of the DPP’s independence does not preclude communications between the QPS and the DPP from being characterised as legal advice.
- It was submitted that the decision of Galway was “broadly analogous” because in both Galway and in the instant case, the purpose of the report had evolved. In Galway it was accepted the relevant time for assessing purpose is when the communication is produced.
- There is no basis, it was submitted, to draw any distinction in relation to the reasoning of Justice Holmes in Galway on the basis that Galway concerned private entities.
- After the hearing on 30 September 2016, and before any decision was made on the application, it came to the attention of the Tribunal from media reports that a national television station, Channel 7, appeared to have a copy of the Report. On 14 March 2017, the Tribunal accordingly asked the parties if this changed anything.
- This ultimately resulted in the applicant filing an application to re-open the proceeding.
- The Tribunal permitted the applicant to re-open proceedings and both the applicant and the respondent filed affidavits and written submissions relating to the issue. An oral hearing occurred on 22 June 2017.
- An affidavit was filed by Mr Crowley, a lawyer who first represented Mr Stafford in 2006. The affidavit was read without objection as to its contents or the truth of its contents. Mr Crowley states that he recalls reading an article on 8 May 2010, after Mr Stafford’s conviction for murder was quashed by the Court of Appeal and the Crown entering a nolle prosequi on the charge, saying that the Queensland Police Commissioner had announced a re-investigation into the murder. Later that year, Mr Crowley says he recalls seeing an article stating that the QPS had completed its investigations. On the same day he says, he recalls the then DPP announcing that Mr Stafford would not be retried.
- In his affidavit, Mr Crowley says that after this proceeding was first heard he was contacted by a journalist asking for an interview. On 22 February 2017, he says the television station gave him access to and allowed him to read what he was told was the executive summary of the review. Later on 27 February 2017, he says he was given access to and allowed to read the whole of the review. In neither case was he permitted to take away or make copies of the documents provided.
- In his affidavit, Mr Crowley records some the contents of what he says was in the document provided to him. He does not say to whom the Report was addressed, if anyone, nor does he attempt to characterise its purpose.
- On 8 March 2017, Channel 7 commenced airing a seven part television series about the Leanne Holland murder, called “Murder Uncovered: The Killing of schoolgirl Leanne Holland.” An advertisement for the series published by Channel 7 asserted that “Murder Uncovered” had a copy of the police review. That assertion is repeated in articles published on news.com.au and the 7 News website on 8 March 2017, in the Queensland Times and the Daily Mail Australia on 9 March 2017 and in the Courier Mail on 10 March 2017. One of the advertisements for the programme aired by Channel 7 showed a picture of an interviewer and Mr Stafford with a coffee table situated between them. The inference is that sitting on top of the coffee table is a copy of the review.
- A number of affidavits containing excerpts from the 7 News podcast series entitled, “Little Girl Lost: The Unsolved Murder of Leanne Holland”, were filed. The podcasts included a statement by the host that after the DPP decided not to retry Mr Stafford for murder, a review was conducted of the original police investigation and the evidence in relation to the murder. The host asserted that Channel 7 had a copy of the review. Episode 8 of the podcast series released on 28 June 2017 was entitled, “The Police Review”. That podcast dealt at length with what were said to be the findings of the police review. At the end of that episode, the program advertised that another episode was to be released in the near future.
- The podcasts refer to “the confidential police review of the murder investigation”. The podcasts do not state to whom the review was directed, but the podcasts do state the conclusion of the police review was that the DPP reconsider re-prosecuting Mr Stafford for murder.
- There is no challenge to the affidavits about the podcasts or the contents of the podcasts alleged in them. There is no reason to doubt the assertion of the presenters for Channel 7 that they had a copy of the review. There is no evidence from the respondent that the Report does not contain the statements or the contents alleged by Channel 7.
- The inference is inescapable that the document in the hands of Channel 7 is the Report. That the Tribunal may draw that inference is properly conceded by the QPS.
- An affidavit by the then Commissioner of Police, Ian Stewart, dated 28 April 2017 was filed. In the affidavit, Mr Stewart says the Report was “confidential within the QPS”, and it was not authorised for release under the Police Service Administration Act 1990 (Qld). The Commissioner says that if the document held by Channel 7 was a copy of the Report, it was a leaked version which was unauthorised by the QPS.
- Mr Stewart does not state to whom the Report was addressed, its purpose or that it was privileged.
- At or about the time of its production, the Report was provided to the DPP. There is no suggestion, however, that the Report was produced for the DPP.
- The QPS suggested that the Report had evolved and by the time of production its purpose was to obtain advice from the Director, but the evidence from Mr Stewart is to the contrary. He says the document was “confidential within the QPS”. There is no evidence from him or anyone else that the Report was written or produced for the DPP.
- It is also not clear how or why the DPP would give advice to the police on this subject. It seems to be accepted that any decision to re-prosecute the applicant was a decision to be made by the DPP, not the police. The only inference open on the evidence, including the announcement by the DPP that Mr Stafford would not be retried, is that the Report was provided to the DPP to encourage the DPP to change his mind about re-prosecuting him.
- If those reviewing the evidence had considered that any other person be prosecuted for the murder of Leanne Holland, it is conceivable that the Report could be treated as being written for the purpose of obtaining legal advice from the DPP as to whether that other person should be charged. There is, however, no suggestion in this case that any person other than Mr Stafford should be prosecuted (or, more properly, reprosecuted) for the murder.
- The circumstances here are quite different to the circumstances surrounding the production of the report, the subject of the decision in Galway. There, the claim for privilege was in relation to a report prepared by independent accountants at the request of SimsMetal. There was sworn evidence from the legal counsel of SimsMetal deposing to his intention (and that of senior management) at the time of requesting the report, which it was said included obtaining legal advice, depending on the outcome of the report. There was further evidence from the legal counsel that, following initial investigations by the accountants, the purpose of the report became one of obtaining legal advice. The claim for privilege in relation to the report was upheld.
- It is accepted that, based on the decision in Galway, that intentions may change and the relevant time for any determination as to purpose to be made is when the document is actually produced. Further, it is accepted that a government agency, such as the QPS, can be regarded as a client if seeking legal advice from the DPP.
- Here, however, the state of the unchallenged evidence about the existence of a decision to review the original police investigation, the state of the unchallenged evidence about the contents of the Report, and the absence of any sworn evidence from the QPS or the authors of the Report about how the Report came into existence or its purpose and that the Report was privileged, makes it difficult to reach the conclusion that legal advice was being sought and that the report is privileged.
- The IC has wide powers to conduct an external review. These powers include the power, under s 100 of the RTI Act, to full and free access to all documents. In reaching the conclusion to refuse access, the IC read the Report. It is not uncommon for courts to read documents alleged to be privileged from production in order to determine whether that allegation is true in fact. In order to rehear the decision, it is appropriate that the Tribunal do so too.
- Having read the Report and the letter accompanying the report at the time of its provision to the DPP, and admittedly with the advantage of the additional background sworn material that followed the re-opening, I have come to a different conclusion to the IC, namely that the Report was written to review the original police investigation and evidence, and not for the purpose of giving or obtaining legal advice or the provision of legal services. It has all the appearance of being, as the Commissioner states, for use “within the QPS”.
- In case I am incorrect in that conclusion, it is necessary to consider whether, even if the Report was privileged, that privilege was waived.
- A privileged document, however, may lose that character if it is waived. This may be express or implied.
- There is no suggestion here of express waiver. The issue is whether there has been an implied waiver. In Mann v Carnell, the High Court commented that “[d]isputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.” Depending on the particular circumstances, considerations of fairness may be relevant to the determination of whether there is such an inconsistency.
- In the circumstances here, it would not seem to be relevant to approach the issue on the basis that there was an implied waiver based on unfairness to Mr Stafford. This is quite unlike the situation being considered in Maurice, and as referred to in Mann, where issues arose as to whether it would be unfair or misleading to allow a party in the course of the proceedings to refer to or use material and yet assert that the material is privileged and not required to be produced to the other party.
- The unchallenged evidence is that, if the document in the possession of Channel 7 is the Report, it was leaked. There is no suggestion that the Commissioner has used the Report against Mr Stafford; other than, it would seem, to submit its contents to the DPP. There is no suggestion that the Commissioner has any further use for the Report. There may be some unfairness to Mr Stafford in Channel 7 having a copy of the Report and him being denied a copy. But that is another issue and one separate to the issues in this proceeding which is between Mr Stafford and the QPS. If fairness were the determining factor there might be something in the submissions on behalf of the QPS that it would be unfair to the QPS for a leaked, and perhaps unlawfully obtained, document to be made available to a third party like Mr Stafford.
- The fact is, however, that despite being told in March 2017 that Channel 7 asserted that it had a copy of the Report, which the Commissioner describes as being confidential within the QPS, the QPS did nothing to prevent publication and republication of its contents. Channel 7 was not contacted and no attempt was made to obtain an injunction to either restrain the use of the document or recover possession under the equitable principles discussed in such cases as Lord Ashburton v Pape, The Commonwealth of Australia v John Fairfax & Sons Pty Ltd and Commissioner of Australian Federal Police v Propend Finance Pty Ltd. On the basis of those authorities, the QPS, as the owner of a confidential document, would have had a right to restrain publication and further re-publication of a confidential document.
- On behalf of the QPS, it was submitted that as the innocent victim the QPS should not have to go to the expense of seeking injunctive relief. Further, on behalf of the QPS, it was submitted that as “the horse had bolted”, it would have been a futile exercise.
- Discretionary considerations would no doubt have been important if any application had been brought. If it is true, as counsel for the QPS submitted, “the horse had bolted” and the information in the Report had already been broadcast and subsequently made available through podcasts, that might be good reason as to why an injunction would be denied. On the other hand, counsel for the QPS also submitted that the Report had not been released into the public domain; in the written submissions it was stated “there had been no wide, and very public, dissemination of parts of the Report.”
- If, as the written submissions suggest, there had been limited publication that would probably have been a factor which would have favoured the grant of an injunction. The expression that the “horse had bolted” does not necessarily contradict that submission. On the evidence before the Tribunal the main form of publication was by free to air current affairs programmes and podcasts. The podcasts were evidently under the control of Channel 7 and therefore could have been easily removed. It is unclear how many televised programmes were run in total but their number could have been limited depending upon when an application were made. In any event, it is not possible to describe an attempt to obtain an injunction as involving a futile exercise.
- In Spedley Securities Ltd (in liq) v Bank of New Zealand, Cole J held, after referring to the decision of the High Court in Maurice, that he could see “no reason in principle why a party may not, by conduct, waive legal professional privilege by omitting to claim that privilege when it is available”.22 His Honour considered that he could see no distinction in principle between failure to claim legal professional privilege for a document by including it in a list of documents discovered and available for inspection, and on the other hand sitting by and allowing use of a document already in the hands of the other party or omitting to take steps to claim privilege in respect of a document known to be in the hands of the court, or as there a liquidator, which was obviously intended to be used. As Cole J observed, each act constituted an implicit waiver because it constitutes an abandonment of the claim for protection.
- In my view, either by an express or implied decision by the QPS not to assert the claim for legal professional privilege when the QPS knew that the right had been infringed and was about to be further infringed, the QPS abandoned and therefore impliedly waived the protection. In those circumstances, the document cannot be characterised as an exempt document on this ground.
- The appeal must be upheld, and the decision of the Information Commissioner set aside.
- The QPS submitted that if I ruled that the Report was not exempt on the grounds of legal professional privilege access “may” be refused on other grounds including that the Report contains personal information or that its release would be against the public interest. A redacted version of a submission by the QPS to the IC dated 23 November 2015 shows the public interest exemption having been raised and relied upon at the time of the matter being before the IC.
- Despite those submissions, the only ground relied upon by the IC at the time the application was before the IC was that the Report was exempt on the grounds of legal professional privilege. The IC dealt with no other grounds in the decision, nor did the IC in the decision reserve any right to do so.
- The problem is that I have now been told that there were other grounds raised before the IC. Two of those grounds are mentioned in the written submissions though not argued before me but more significantly those grounds were not the subject of consideration or a decision by the IC.
- Unfortunately, I am limited in my powers to now deal with that issue. This is an appeal against the decision of the IC, pursuant to s 119 of the RTI Act, which appeal is required to be done in accordance with the QCAT rules and procedures.
- The decision of the IC only considered the legal professional privilege exemption. There is no decision on the other grounds. In the circumstances, I have no alternative but to remit the matter to the IC to re-consider the application on the other grounds of exemption.
- Accordingly, the Appeal Tribunal orders that:
- The appeal by the applicant against the decision of the Information Commissioner is upheld.
- The decision of the Information Commissioner of 18 February 2016 is set aside.
- The application is remitted to the Information Commissioner to be reconsidered on the other grounds of exemption.
- The costs of the appeal are reserved, with liberty to the parties to make an application for costs within 28 days of the date of this decision.
 Decision of the IC dated 18 February 2016, .
  QSC 180. 3 Supra n 1, .
 RTI Act, s 122.
 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, ; Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543, .
 (1997) 4 QAR 157.
 Applicant’s Outline of Submissions on Review, . 8 Ibid, .
 Supra n 7, .
 Such a procedure was adopted in Galway, consistent with the approach endorsed in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No.2)  2 QB 102 at 129 and cited with approval by Mason and Wilson JJ in Waterford v The Commonwealth (1987) 163 CLR 54 at 61.
  2 Ch 469.
  2 All ER 485 at 494.
 Attorney-General (NT) v Maurice (1986) 161 CLR 475, 481 (Maurice).
 (1999) 201 CLR 1 (Mann).
 Ibid, .
 Supra n 13.
 Supra n 14.
 Supra n 11.
 (1980) 147 CLR 39.
 (1997) 188 CLR 501, 565-566.
 (1991) 26 NSWLR 711. 22 Ibid, 730.
 RTI Act s 122; See also QCAT Act, s 146.
- Published Case Name:
Graham Stafford v Information Commissioner and Queensland Police Service
- Shortened Case Name:
Stafford v Information Commissioner
 QCATA 61
10 May 2019