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- Unreported Judgment
Pennisi v The Information Commissioner QCATA 98
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Pennisi v The Information Commissioner  QCATA 98
marcello salvatore pennisi
the information commissioner
queensland building and construction commission
3 September 2021
On the papers
Judicial Member D J McGill SC
ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REVIEW OF DECISIONS – OTHER STATES AND TERRITORIES – appeal to Tribunal only on question of law – evidence sought to be relied on relevant only to the application of the legal tests – evidence unable to show error of law by decision maker
APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN NOT ADMISSIBLE – appeal only on question of law – evidence sought to be relied on relevant only to the application of the legal tests – evidence unable to show error of law by decision maker
Right to Information Act 2009 (Qld) s 119.
Adani Mining Pty Ltd v Information Commissioner  QCATA 52
Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd  QCA 202
Coulton v Holcombe (1986) 97 CLR 1
Ellis v Queensland Building Services Authority  QCATA 93
Flegg v Crime and Misconduct Commission  QCA 376
Osland v Secretary, Department of Justice (2010) 241 CLR 320
Powell v Queensland University of Technology  2 Qd R 276
Sibelco v Right to Information Commissioner  QCATA 59
Stafford v Information Commissioner  QCTA 51
Waterford v Commonwealth of Australia (1987) 163 CLR 54
Wilkins v Gunter (No 2)  QCATA 42
Holding Redlich Lawyers
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- On 6 November 2020, the applicant filed in the Tribunal an application to appeal the decision of the first respondent of 9 October 2020 to affirm on external review the decision of the second respondent to refuse access to the applicant to certain information, on the ground that it comprises exempt information. Directions have been given, and it became apparent that the applicant sought to rely on fresh evidence on the appeal. Pursuant to a direction, he filed on 28 April 2021 an application for leave to rely on the fresh evidence he had filed with his submissions in relation to the appeal. It is the application for leave which is before me.
- The applicant is a home owner who entered into a contract for building work to be done on a house. The work was covered by the statutory insurance scheme operated by the second respondent under the Queensland Building and Construction Commission Act 2009 (Qld) Part 5. Following a dispute between the applicant and the builder, the applicant made a claim on the second respondent in respect of the scheme, which was rejected. I understand that there are proceedings pending before the Tribunal, by which the applicant seeks to overturn that rejection on review, and is also pursuing a damages claim against the builder.
- In connection with that dispute, the applicant sought disclosure from the second respondent under the Right to Information Act 2009 (Qld) (“RTI Act”) of documents relating to the claim under the scheme. A large number of documents were disclosed by the second respondent, but the second respondent declined access to 365 full pages, 4 part pages, and one audio recording, on various grounds. The operative decision for the purposes of external review was made on 2 October 2019.
- The applicant sought external review of the decision by the first respondent. Some issues were resolved during that review. What remained in issue was disclosure of 359 pages, and 121 duplicate pages, which the second respondent claimed were subject to legal professional privilege. The first respondent upheld that claim, found that those documents were covered by legal professional privilege, and hence were exempt from disclosure under the RTI Act. On that basis, the decision not to disclose them was confirmed. That decision is the subject of the substantive appeal.
- Directions have been given by the President of the Tribunal for the appeal, including that the applicant file and serve submissions in writing. Those submissions were filed by the applicant on 28 April 2021, accompanied by a number of documents on which the applicant sought to rely on the appeal, which had not been before the first respondent. Hence the direction for the filing of the application for leave to rely on that evidence on the appeal. In support of that application, the applicant has filed submissions which essentially rely on the earlier submissions in writing to show that the documents now sought to be relied on are relevant to the appeal, and are credible, and also outlined the basis on which he said they were not available to him earlier. The first respondent has filed brief submissions contending that the material sought to be relied on by the applicant is not relevant to any question of law before the Tribunal. The second respondent filed longer submissions, to the same effect, and objected to the grant of any leave to rely on additional evidence.
Decision of the First Respondent
- The reasons for the decision under appeal referred to the background to the review, and stated correctly that information the subject of legal professional privilege is exempt from disclosure under the RTI Act. The requirements for legal professional privilege to apply were set out, and factual findings were made leading to a conclusion that the relevant documents were subject to legal professional privilege. The applicant had argued that any privilege had been waived, and the reasons set out the test for waiver, and decided that the circumstances relied on by the applicant, in particular some references to the legal advice in other documents disclosed to him did not amount to waiver of the privilege. The reasons correctly state that once information is identified as exempt there is no discretion to disclose it. Consideration was given to the argument that other relevant documents had not been identified, which was rejected, and the decision was affirmed.
Nature of the appeal
- Under the RTI Act s 119 the applicant is entitled to appeal to the Tribunal from the decision of the first respondent. By that section the appeal is only on a question of law, and may only be by way of a rehearing. That the appeal provided by s 119, because it was confined to a question of law, is in the nature of judicial review, is supported by strong authority. The appeal does not provide a mechanism for reconsidering any issue of fact decided by the first respondent, except on the narrow ground that, as a matter of law, the decision on the issue was not open on the material before the first respondent. The only issue is whether an error of law was made by the first respondent.
Fresh evidence on the appeal
- The proposition that an appeal such as this is by way of rehearing was considered by Thomas J, the then President of the Tribunal, in Sibelco v Right to Information Commissioner  QCATA 59, where his Honour said at :
The inclusion of section 119(5) allows the Appeal Tribunal to have reference to evidence or arguments, which may not have been before the Information Commissioner, in determining whether there is any error of law in the decision by the Information Commissioner.
- It does not follow that there is an unrestricted right to advance additional evidence or new arguments on appeal. In Adani Mining Pty Ltd v Information Commissioner  QCATA 52 I referred to this passage at , and said at  that the evidence which was admissible on this basis was evidence which would show an error of law in the decision. This follows from the fact that the appeal is limited to one on a question of law only. For example, evidence could be put before the Tribunal to show that there was a breach of the rules of natural justice by the Information Commissioner, but that is not what is alleged here. Evidence which is relevant only to the decision of the Commissioner on a question of fact cannot be relevant to the outcome of an appeal, because it will not be relevant to a question of law. Even if it could be shown by additional evidence that a decision on an issue of fact was wrong, that would not show an error of law by the Commissioner, because it would not show that the decision on that issue was not open as a matter of law on the evidence before the Commissioner.
- It follows that there is no general right to put additional evidence before the Tribunal on an appeal, and that evidence will not be relevant on the appeal unless it is relevant to a question of law in the appeal. In the ordinary case of an appeal by way of rehearing, additional evidence is not admissible unless it related to events at or subsequent to the proceeding at first instance, or unless it could not with reasonable diligence have been obtained at the trial. Unless an appeal is provided on the basis that it will be a fresh hearing on the merits, which the appeal under s 119 is not, it has always been considered that there is no general right on the part of a party to rely on evidence additional to that relied on at the hearing for the decision under appeal.
Submissions of the Applicant
- The first document the applicant seeks to have admitted is an internal guidance statement of the second respondent, about how to protect legal professional privilege. This is in support of an argument that the second respondent waived legal professional privilege by not following this guidance statement. This document was not disclosed on the relevant application for information, on the basis that it had not been used in the relevant decision, although it was subsequently disclosed in a separate request for access to information. The short answer to this submission is that the tests for whether legal professional privilege attaches, or has been waived, do not depend on whether or not the steps set out in this document were followed.
- The identification of the correct test is a matter of law, and depends on what the law really is. This is found in the decisions of the High Court, and other courts, about waiver of privilege. If on appeal it is shown that the first respondent did not apply the correct legal test, that is an error of law. But if the correct test has been applied, the decision that what occurred in this case did not amount to waiver is a finding of fact and a matter of judgment, and is subject to challenge on appeal only on the limited basis indicated earlier. If what the second respondent did amounted to waiver it would not assist it to show that it had complied with this guidance statement; in the same way, failing to comply does not necessarily mean that waiver has occurred. The document is simply some person’s opinion on a matter of law, that certain action will not amount to waiver, and an opinion on a matter of law is never admissible in evidence anyway. Similar reasoning applies to the question of whether the privilege arises. The document is irrelevant to the question of whether there was an error of law in the decision of the first respondent.
- The applicant seeks to argue that the failure to use the document is evidence of conduct inconsistent with the maintenance of legal professional privilege, an intention to waive the privilege or an admission that the advice was not privileged. There is already a finding that the guideline was not used, so that, to the extent that there may be substance in any of these points, they are available already, without relying on the statement. The contents of the document are irrelevant. In those circumstances, it is unnecessary to consider the tests for the admission of fresh evidence on appeal, although the fact that the document was ultimately disclosed to the applicant shows that it could have been obtained by him in his original application for access if it had been worded differently, or otherwise before the matter was decided by the first respondent.
- The guidance statement suggests the use of a particular template if seeking legal advice, and the applicant argues that if this was not used it indicates that the privilege does not attach. That mistakes the test. So long as the dominant purpose of the communication is to obtain legal advice, the form of the communication is irrelevant to the existence of the privilege. The finding that there was a request for legal advice was a finding of fact, and not subject to challenge on appeal to the Tribunal relying on additional evidence.
- The applicant’s submissions on the third ground of appeal illustrate why the focus must be on the correct legal test, rather than whether or not the guidelines were followed. The applicant argued that, if any part of any of the responses from the legal division included responses on the second respondent’s policy, commercial, management, administrative or procedural matters then the responses were not legal advice, and legal professional privilege did not attach. The first respondent applied the dominant purpose test. Whether that was the correct test is a matter of law and subject to appeal. But whether the relevant material met that test is essentially a question of fact. The applicant’s submission, based on the fresh evidence, misstated the legal test. The fresh evidence is not relevant to the identification of the correct legal test, or whether there was an error of law in applying the test.
- The applicant referred to Stafford v Information Commissioner  QCTA 51. In that matter Sheridan DCJ stated at  the dominant purpose test. The appeal succeeded because that test was not met: , . This must have been on the basis that, on the material before the Commissioner, a finding that the dominant purpose test was met was not open. To show that an error of law of this nature was made, it is necessary to assess the finding of the first respondent on the basis of the material then before the first respondent. There is no error of law by the first respondent shown by introducing additional material tending to show that a decision on a question of fact was wrong. It follows that additional material relevant only to a question of fact is irrelevant to an appeal on a question of law.
- If an error of law by the Commissioner can be shown, as a result of which a finding of fact cannot stand, the matter has to go back to the Commissioner unless only one outcome is legally possible on the material. It follows that new issues dealing with matters involving the application of the applicable legal tests, not ventilated before the Commissioner, cannot be raised on appeal to the Tribunal. It cannot be an error of law to fail to deal with an argument not advanced.
- The applicant seeks to introduce fresh evidence directed to the question of whether the legal officers who provided advice to the second respondent were sufficiently independent to come within the scope of legal professional privilege when “in house” employed lawyers provide legal advice. That legal professional privilege can apply to employed lawyers was established by the High Court in Waterford v Commonwealth of Australia (1987) 163 CLR 54. The approach of Mason J and Wilson J was that what mattered was whether the employed lawyer was exercising legal professional skill and learning in providing the advice, but other members of the Court did consider issues of independence on a broader basis.
- That case involved advice given by the Commonwealth Crown Solicitor’s Office, and it was easy enough to characterise that office as sufficiently professional and independent. An argument was advanced that that independence was compromised because it was part of the Attorney-General’s Department, another part of which handled issues under the Freedom of Information Act (Cth), but the majority upheld the existence of legal professional privilege. In the present case, one argument of the applicant is that the necessary independence was lacking because the legal officers were in a particular section of the second respondent which also handled internal reviews, if someone like the applicant was entitled to have one undertaken. In the light of Waterford, that is an unattractive argument.
- In Waterford, Mason and Wilson JJ said expressly that whether the relationship between the administrative decision maker and the employed legal adviser was such as to cause legal professional privilege to attach was a question of fact. I respectfully agree. It follows that additional evidence directed to that issue is not relevant to a question of law raised by the appeal. So long as the first respondent applied the correct legal test, and did not make any other error of law on the material before the first respondent, the appeal on this point must fail. Fresh evidence should not be admitted, because it is irrelevant.
- The applicant, for the purposes of this argument, sought leave to rely on fresh evidence in the form of an internal document of the second respondent which recorded the conclusion expressed in the legal advice (Exhibit B), extracts from two annual reports of the second respondent (Exhibits D and E), emails where he said the second respondent refused to answer his questions about the issue of independence (Exhibits H and I) and a document of the second respondent entitled Internal Review Procedure: Exhibit T. This argument cannot, by relying on additional factual material, expose any error of law on the part of the first respondent. It follows that this material is irrelevant, and accordingly leave to rely on it should be refused. As well, Exhibit E, which is an extract from the 2019 annual report, and which provides the basis of the argument at a factual level, was available to the applicant at the relevant time, in the sense that he could have obtained it with reasonable diligence.
- Another document which the applicant sought to rely on was the decision of the second respondent on the internal review of the decision to reject the claim on the insurance policy, identified as Exhibit C. The first respondent said that this was not relied on by the applicant on the external review, and in those circumstances the applicant should not be entitled to rely on it in the appeal. Clearly it was available to the applicant at the time when the review was before the first respondent, so the first part of the test for fresh evidence on appeal cannot be satisfied. To allow the applicant to rely on it on appeal would be to raise a new issue on appeal, and that could not show an error of law on the part of the first respondent. Leave should not be given to rely on this document.
- The applicant also seeks to rely on his request for an internal review of the decision to reject the insurance claim, which included his submissions in relation to the internal review: Exhibit R. This was said to be referenced at p 18 of the applicant’s submissions, but I cannot identify the reference. I cannot see how this document is relevant to the appeal, and will not give leave to rely on it.
- The applicant has been unable to show that leave should be granted for him to rely on any of the documents sought to be relied on as fresh evidence. Accordingly the application for miscellaneous matters filed by the applicant on 28 April 2021 is dismissed. The second respondent sought leave to be heard on the question of costs of the application. In the circumstances, I consider that the most efficient course is for any question of costs of the application to be reserved to the Member who hears the substantive appeal.
 The RTI Act s 47(3)(a); s 48(2); Schedule 3 s 7.
 Osland v Secretary, Department of Justice (2010) 241 CLR 320; Powell v Queensland University of Technology  2 Qd R 276 at  – . That case involved the Information Privacy Act 2019 (Qld) s 132, but that is relevantly in the same terms as the Act s 119.
 As to the identification of an error of law, see also Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd  QCA 202.
 B Cairns, Australian Civil Procedure (Thomson Reuters, 11th ed, 2016) [18.330]. This is subject to any applicable statutory provision, which is not the case here. There are two additional requirements, that the evidence be material, and that it be credible. This approach was followed, in the case of an internal appeal, by the first President of the Tribunal, A Wilson J, in Ellis v Queensland Building Services Authority  QCATA 93 at , and is still applied: Wilkins v Gunter (No 2)  QCATA 42 at .
 Coulton v Holcombe (1986) 97 CLR 1.
 Osland (supra) at : whether there has been waiver is a “matter of fact and degree”.
 Whether the conduct of the second respondent relied on as amounting to waiver is inconsistent with the maintenance of the legal professional privilege, or is misleading, is a question of fact: Osland (supra) at , .
 Flegg v Crime and Misconduct Commission  QCA 376.
 Powell v Queensland University of Technology  2 Qd R 234.
- Published Case Name:
Pennisi v The Information Commissioner
- Shortened Case Name:
Pennisi v The Information Commissioner
 QCATA 98
Judicial Member D J McGill SC
03 Sep 2021