Codianni v Water Resources Commission, Department of Primary Industries [1995] QIRC 72 (1995) 148 QGIG 942

942 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [31 March, 1995 ######################## ############################### QUEENSLAND INDUSTR IAL RELATfONS COMMISSION Industrial R eial ions Act I 990 s. 295 - application for reinst atement .I . Codian ni AND Water Resources Commission, Departmen t of Primary Industrit:s {,J..·o B2 7J of 1994) COMMISSIONER DEMPSEY 20 March 1995 App li cation for Reinstatement - Preliminary Matter - Discovery of Documents - Legal Professional Privil ege -- Case Law - Discovery of Li mited Documen ts Granted. DECISION The appli cant in this ma tter is Joseph Codianni, who was emp loyed in the Water Re sourc es Co mmission as Land Use Clerk, 13unc..laberg . On 22 December 1993 his services were terminat ed by letter. Further de tail, will be canvassed in fu ture. proceedings. In this prel imi nar y hearing the app licant has sough t the production o f and di scovery of d ocuments from hi~ emp loyer and the Cr iminal Just ice Commission (CJC ). The responden t. the Department of Pr ima ry Industries (DP !) has objected to the disclosu re o f ce rta in documents on the grounds of kgal professional pr ivilege. In producing the docume nts required by way of sununons, Mr Kenned) rep resen ting DP! informed the Commi ss ion that the documenLS to which the res ponde nt claims legal profess io nal pr ivi lege remain in lhe tiles produced, howe ver they have been scakd in envelopes. T he only reasons g iven lo r clai ming the priv ilege are. (I) advice was given by the Crown Lav.- Office to c laim priv ilege, and (2) the documents 10 which priv ilege is claimed are doc uments which relate to commun ic,ni ons made for the sok puqiosc of being submitted to legal adv isers for advice or for use in legal proceed ings pending or reasonably contemp lated . Mr Sco tt. a lega l officer in the emp loy of the CJC ap peared to produ ce the documents required by summon s served on the CJC. In sup po rt o f the CJ Cs conten ti on that ce rta in doc u mems should no t be di scovered, an aflidav it by Pierre Mark Le Grand. solicit or and Director of the Official Misconduct Di vision of the CJC was tendered (Ex 4). 145 10_ 1.DOC 3 1 March, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 943 The con tents of that affidavi t are as follows :- .. I. Pierre Mark Le Grand of 557 Coronation Dr ive, Toowong in the State of Queensland. So licitor. make oath and say as fol lows : I. I am the Director of the Offic ial Misconduct Division o f the Criminal Justice Commission (here inafter referred to as ' the Commission ') which was established pursuant lo the Crim inal Justice Act I 989 (here inafter referred to as 'the Act ') which was proclaimed on 4 November 1989 by Order in Counci l. The Direct or o f the Official Misconduct Division is a member of the Execut ive of the Commission. By virtue of my position, I am du ly autho ri sed to make this affidavit on behalf of the Comm iss ion. 2. In accorda11cc with section 3 of the Act, lhe Comm iss ion was es tablished to. i nter alia, invest igate compla ints of official misconduct referred to the Commission and w secure the taking of appropriate act io n in respect of official misc onduct. 3. Pursuant to section 19 of the act, the Oflic ia l Mi sconduct Division was established as an organisational unit in the Commission. 4. By section 29 o f the Act, the Official Miscon duct Division was es tablished as the investigative un it within the Commission and has a number of function s including, inter alia. t he following: (a) investigaring the inc idence or official misconduct generally in Queens land: (b) investigating all cases of alleged or suspected misconduct by membe rs o f the Police Service: (c) 111ves1iga ting all cases of alleged or suspected misconduct by persons hold ing appointments in un its of pub lic adm inistra ti on other than the Poli ce Service. 5. I have to hand a su mmons issued on 16 December 19 94 ('the su mmon s ·) . a true copy hereof is ex hibi ted and ma rked wi th the letter ·P MLGI'. The summons is directed to the Cr iminal Ju stice Commission. 557 Coronati on Drive. Toowong . 6. By the summons, the Commission is required to appear be fore the Queensland Industrial Relations Comm iss ion on the 6th da) of February 1995 at 10 o ' clock in the forenoon and then and there lo have and produce lhc Co mmiss ion 's fi le known as· 502-03-81-02 l(sic) anc..l all other books, papers . wr itings and other documen ts relat in g. to the said action which may be in your custody. possession or power '. 7 . I have perused the Co mmi ss ion·s fil e bearing the reference ·502-03- 18 -021 •. Having considcre.d the d ocuments contained on the said tile and bei ng conscious of t he sta tutory responsibil ities o f the Commiss ion and the Director of the Official Misconduct Divis ion. I say on behalf of the Co mmission tha t the documents numbered as foli os 3. 22 and 24 are subject to lega l professiona l privi lege and I objec t to the productio n of the same. Documt:>nt 3 is a memorand um from a salaried lega l officer emp loyed by the Commission to the chi ef officer of the Comp laints Section of t11c Comm iss ion. Document 24 is a memorandum from a sal aried legal officer o f the Commi ss ion to the Director of the Official Misconduct Divis ion of the Co mmiss ion. I have examined eac h o r 1hese documen 1s and I say tha t, in each case. the so le purpose for which the documents came into existence was lo fu rnish legal advi ce to the several recipients of the documents in connection with the fu nctions o f tht' Co mmission . 8. Furthe r or alternat ive ly I say on behalf of the Co mmissi on tha t it wo ul d be in ju rious to the public interest and t he adm ini stra ti on of jus tice if these documents were to be produced or disclosed to an y person or to the Queens land Industria l Re lations Co mmission. I fu11her say th at in order that the public inte rest may not be damni fied. it is necessary for the proper func ti oning of the Comm iss ion that lhe sa id do cuments sh~) uld be kept secret. I therefore obj ect to the production of these doc uments. 9. T he reasons why I say that the disclosu re of the documents referred io in paragraph 7 hereo f wou ld be injurious to the public interest and why t he proper function ing of the Comm ission would he adve rse!)' affected by the disclosu re of the sai.d documents. arc as follows : (a) The d ocumen ts being sought belong lo a class of do cuments the d isc losure of which is. as a m auer of general pri nc iple. contrary to the publi c interest. Th e class of documents to which the documents sought belong is those documen ts containing a legal assessment of evidence obtained in the course of an invest igat io n cond ucted by the Comm iss ion . and/or containing legal advice as to what action sho uld be taken b y the Com mi ssion in the light of the evidence obtained in such an in vest iga tion. (h) The production of these documents. which be Ion~ to the sa id class of do cu ments . wou ld prejudice the Comm iss ion· s discharge of iL~ sta tutory func ti ons and powers by u 11<.l en 11i ni ng th, confidence of the lega l advisers of the Co mmiss ion in the con ti de ntia lity o f their legal memoranda, there.by deterring such officers from incorporating within s uch memoranda ful l and frank observations a nd recommendations in respect or evidence ob tained in the course of an invt:stigat ion . Furthermore. it co uld deter th~ Commiss ion from seeki ng legal advice from ils salaried lega l o fficers in relation to its invest igations. I 0. Having considered the document num be red as folio 8 and being conscious o f the s tatutory r<.!spon s ibil ities or the Commission and of the Direc tor of th e Official Misconduct Division , I say on beh alf o f t he Commiss ion that it wou ld be injuriou s to the public in terest and the admin istra ti on of justice if this do cument was to be produced or d iscl o sed to any person or to the Queensland Ind ustrial Relations Commission. I funher say that in order th at the publ ic in terest ma y not be damn ified. it is necessary for the proper function ing o f the Comm ission that the sa id document shou ld be kep i secret. I the refore obj ect to the product ion of this document. 11 . The reasons why I say !hat the dis1.:losurc of the doc u me nt numbered as folio 8 would be injuriou s lo the publ ic interest and why the proper fu nction ing of the 145 I0_l.D OC -- 1 of 3 -- 944 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE l31 March, 1995 Commission v.ould be adversely affected b: the disclosure of the said document are as follows: ( a) The document sought belongs to a class of documents, the disclosure of,, hich is. as a matter of general principle. contrar) to the public interest. The class of documents to which the document in question belongs is those reports and memoranda prepared by the Commission im estigators for submission to superior officers of the Commission. advising of the nature of the investigations that they have conducted and containing their assessments of the veracity and reliability of the witnesses inter, ie\\cd. disclosures or the sources of conl1dential infonnation received m the course of the investigations and their recommendations for further action. (b) The production of this document. which belongs to the said class of documents. would prejudice the Commission· s discharge of its statutor: fi.mctions and powers by undern1ining the confidence of Commission investigators in the confidentiality of their reports and memoranda and deterring such inwstigators from incorporating within such reports and memoranda full and frank assessments. disclosures and recommendations m relation to their investigations. Furthermore. the disclosure of the sources of confidential infonnation would result in potential informants being reluctant to bring inforn1ation to the Cmmmssion. (c) Further or alternatively, I object to the production of the said document on the basis nf its spcci tic contents and say that its disclosure would he injurious to the public interest. I say that the document contains the assessment of a Commission investigator of the \eracit) and reliability of a witness. and furthermore contains infonnation that would rc,cal the source ()i infonnation obtained. 12. Having considered the document numbered as f~;lJo 23. say on behalf of the Commission that this document is not rele, ant to this action and l therefore object tn its production The said document relate, to an internal staffing matter and concerns the manner in \,hie!, a fonncr employee of the Cornmis,iun preformed his duties.". The contents and veracity of the anida\ it \\ere not contested. At the commencement of these proceedmgs. Mr Kenned) on behalf of the respondent objected to the applicant or the CIC being represented by legal counsel. lume\ er. alter some discussion and debate and without prejudice to the respondents objection to legal representation it \\ as agreed that \1r ",cntt put the submissions with respect to the CJC claim for legal professional privilege and public immunity and that Mr McGee. counsel for the applicant. \\Ould advance the argumcms in response to the submissions put on behalf of the CJC I will report in some dctaii the suhmis,ions of the parties and particularly the authorities relied upon as I am of a view that applications of this nature are likely to become more frequent in this Jurisdicuon. Mr Scott submitted that the CIC objects to the production of certain documents contained on the files previously produced. !hose certain documents are identified as folios 3. 22. 24. 8 and 23. The basis of objection \ arics according to the particular document. With respect to folios 3. 22 and 24 the objection is legal professional privilege or altemati\'ely public interest immunity and in so far as folio 8 is concerned the claim is public interest immunity. With regard to folio 23 the claim is one of relevance and the CIC claims it is irrelevant to these proceedings. On the question of legal professional privilege Mr Scott contends that privilege applies to a salaried legal officer of an entit1 or a government organisation and tendered as authority WatCJjord v. Commomiealrh 163 CLR/54 (Ex 5). Reference was also made to the "Sole Purpose lest" as enunciated in Grant v Downs ( 135 Cl .R p.676). lt \\as also submitted that the ,cry reason for the pri\ilegc existing is to encourage candour in the gi, ing of advice by lawyers "hile simultaneously preventing any reluctance or hesitation on the part ofGmernment from having to resort to such legal advice. On the contention of public interest immunit1 Mr Scott referred me to the publication "Law of Privilege", author Sue McNicol and the authority enunciated in Sankey v. Whit/am where Gibbs CJ said:- "The general rule is that the Court will not order the production of a document. although rcle\ ant and otherwise admissible. if it \\ould be injurious to the public interest to disclose it. HowC\ er. the public interest has two aspects which may conflict. It is in all cases the duty of the Court and not the privilege of the exccuti\e GO\cmment to decide whether a document will be produced. or may be withheld. The Court must decide \\hich aspect of the public interest predominates. or in other words. whether the public interest which requires that the document should not be produced outweighs the public interest that a Court of Justice in performing its functions should not be denied access to relevant information ... It is contended by Mr Scott on the issue of public interest immunit\ that in effect it comes down to a balancing c\crcisc bet,1crn the t\10 competing interests. i.e. the public interest claimed by the (JC as against the public interest claimed by the applicant to \ ie\1 certain olthc documents to assist his claims against the DP!. With respect to folio 23 the CIC claims the document 1s irrckv ant as il related to an internal staffing. matter. Mr \1cGce for the applicant g,\\ c a brief history of mr Codianni ·s employment then claims that nn :n Jule 199., "ithnut prior notice rnr Codianni was rcljuircd lo he intcn in,cd h1 detective Inspector Turner from the CIC. then by a memo dated 7 October I 993 the applicant \\as suspended from duly cffecli\ c close of business 8 October 1993. Enclosed \\ith the same memo was a schedule or charges of suspected misconduct. An opportunit) to admit or deny and respond to the allegations within 1-l days 1s prO\ idcd for Ill the same memo. Mr Codianni responded as required and essentiall) all of the allcgalions were denied. !'hen by \\ ay of a further memo dated 22 December I 993 the Director Cicnernl of DP! acknowledges receipt of Codianni 's rep!). ach ises that his explanations \\ ith one exception arc not accepted then fu1thcr advises that in accordance with the prO\ isions of section 29 of the l'ub/ic Senice .\fanagement and l:"111plo1·11w11r Acr I 988 his services will be terminated ctTecti\e from clusc of business 12 Januar) 1994. J'hc applicant claims he sought lo obtain n:lc, ant material from his employer and the CJC The CJC denies that such a request \1as 1-l510 I.DOC 31 March, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 945 ever made of that body although it would appear from the mformat1011 I have at this point in time Mr Codianni mav have attempted to obtain CJC material via DPJ. In any event it wot;ld now appear that all the inforn1ation required has been provided or is capable of being provided except for those documents DPJ claims arc subject to legal professional privilege. The CJC does likev1isc for some documentation and on others claims public interest immunity. In support of the applicant Mr McGee tendered a number of authorities and commenced with Grant v. Downes and in particular he rc!ers to the mternal reports sought in that case and the relevance of the sole purpose test and further refers to page 682 where their honours Mr Justices Stephen. Mason and Murphy state as follows:- "Thc relevant principle of law governing the privilege which attaches to communications and materials submitted bv a client to his solicitor for the purpose of advice and for the p~rpose of use 111 ex1stmg or anticipated litigation.". . . A number of other authorities were tendered by Mr McGee. I hey arc .\'ationa/ Fmp/overs Afutua/ General Insurance Association l.imit:d against Waind and Another, I 979. 140, CLR at pages 644- 48: Corporate Affairs Commission o/Aew South Wales against Yuill and Others, 1991 CLR at page 319: Judgment deliv;red on 18 Fehruar) 1994, Criminal Justice Commission v. S .\4 Collins. .\Iu//ey v. Manifold. 1959 I 03 CLR page 345; R v. Kingston, J 986 QR page 114. I was also referred to an article described as 16 Criminal I .a\1 Journal 1992 at page 320. The article addresses legal professional privilege and disclosure powers of investigative agencies. _l was advised that the_ article discusses the impact of a changing society on the doctrine of legal professional privilege. In Australia mvest1gat1,e agencies have been created to investioate different aspects of criminal beha\ iour in a complex society. "'J obtained a copy and considered the contents of this extremely thorough publication l have considered the submissions of all parties. J have also taken account of the authorities tendered for my consideration and in the course of doing so I was almost persuaded to order the disclosure of. the CIC documents on the basis that they did not come into existence for the_ purpose of litigation in judicial or quasi judicial procecdmgs. until I considered the matter of Baker v. Camphe/1 (CIR - 153 page 52-133) where their Honours Murph)-. Wilson. Deane and Dawson JJ fonned a majority view with Murph) J observing as follows:- "In O 'Rei/fr v State bank of I "ictoria Commissioner., (90) this Court decided Gibbs CJ. Mason and Wilson JJ: Murph) J d1ssentrng that legal privilege was available to protect evidence from. disclosure only in the actual course of judicial or quasi- .I ud1c1al proceedings.". What is of significance is that O'Reilly·s case was detcnnined in l 98_2. revisited. reconsidered and overturned by a majority in Baker ,, Campbe/lthe following year, 1983. Murphy J continued in his judgmcnt to examine international conside~ations on the same question and notes the changes in the l n1ted States. Canada and New Zealand. \1urphy J makes the follm1ing obserrntions although I must add at this point in these proceedings it does not intlucncc ~he decision I came lo. however given the fact that there has been a CJC investigation and that it may be referred to I will outline his l lonour·s comments:-- "The clients legal privilege is essential for the orderlv and dignified conduct_ of individual affairs in a social atmo;phere which JS hemg poisoned b) official and unofficial eavesdropping and other mvas1ons of privacy. The indi\'idual should b.: able to seek and obtain legal advice and legal assistance for innocent purposes without the fear that what has been prepared solch for that advice or assistance may be searched or seized ;nder warrant. Denying the privilege against a search warrant would have a mini_mal effect in securing convictions hut a major damagmg effect on the relationship between the legal profession and its clients. It would engender an atmosphere in which c1t1zens feel that their private papers are insecure and that relationships they previously thought confidential are no lonocr safe from police intrusion. As Douglas J. stated in Couch"' v. l.nited States (14), ·The constitutional fences of law are being broken do\\11 by an ever-increasingly powerful Government that seeks to reduce every person to a digit'.". With respect to the matters I must decide in this preliminan hearing. ic .. documents to he released to the applicant. the decisio~ of the High Court in Baker v. Campbell is the leading authority to the best of my knowledge and therefore the existence ofjudicial or quasi ,1ud1c1al proceedings can not he a determining factor and therefore not a requirement before legal professional privilege is available. l should also add that following the hearing on 6 Fcbruarv 1995 I had a view that the employer. DPL may have depe;ded on mformauon gathered and given to it by the CJC and had it done so it may have been placed in a dilticult position defending its decision to terminate the applicants employment should the material the CJC seeks not to disclose he withheld from production. Having that view I sought the views of the respondent at a hearing on 16 March and was advised by the respondent that they would not be reliant on material gathered or produced by the CJC to justifv the decision to dismiss Mr Codianni. - I have reported the issues above in the event that production of the CJC material sought to be protected may have to he revisited. Given that DP! has advised that it docs not intend to relv on inforniation gathered by the CIC. l sec no point in the applicant pursumg this course of action. Furthern1orc I am mindful of the fact that the applicants employment was terminated almost 14 months ago and l am therefore of a , iew that it would be in the best interest of both parties that this matter proceed to finality as quickly as possible. Further. in so for as the CJC material is concerned I have taken ac_count of the sworn statement (affidavit) of Mr Le Grand together with the fact that the CJC did not call him as a witness and that the applicant did not require his presence. Mr Le Grand· s statement is clear and. precise on the issue of legal professional privilege and the purpose for which the documents were created. J believe J have no choi_ce . but to accept his sworn statement in so far as legal professional pnvdege 1s concerned as his statement is not contested. A sworn statement of this nature. particularly when it is not contested must carry more weight than an; submission made on behalf of the applicant On the issue of public interest immunit 1. J do not intend to come to an ultimate conclusion given previous comments, i.e .. DP! not r_el) rng on CJC material. llO\\e\·er, I would advise the parties that J found Exhibit I 0. Criminal Justice Commission v. Simon ,\,fichael Collzns, very interesting to the extent that it ma; \\Cl! be that in the tuture clauns_ made by the CJC on the grounds of public interest 1mmun1ty will ha\ e to be supported by different argument l·urthern1ore the comments l have reported in Baker v. Campbell bv Murphy J. may in the future reappear in a completely context give; that my research advises that the Chief Executive officer of a 145!0JDOC -- 2 of 3 -- 946 QUE ENSL AND GO VERN ME NT I D US TRIAL GAZE'JTE O.:par1mcn1 mu,t rcler h1, or her lind1112 of offic1.sl m1sconouu 10 thcCJC . I mal-c no order that 1hc CJC be n:quired I<' produce th.: mmcrml i1 soughl 10 be protected in h)!hl of 1hc fac1 1hat it ha, agreed to mul..c ull lllhcr malerial ,1, ailahle Ha, mg rega rd to the ,ubmission, put fom.trd b) '.1r Kenned~ on bchalf of the DepJrt111cnt ol Prima~ lndustric, cl:ummg lq:al professional pnv i lcgc for certain documents it should be bomc 111 mind 1ha1 I lw, e no s,,om s 1a1cmcn1~ or edd..:ncc. lhercfor.: Jtlcr con, 1denng the au1hon11~, tendered I ti:lt the neec~sll~ to , IC\\ the documcnts )(lr "hich 1he pn- ikf!e i, claimed. Having l' ic \\ Cd 1hc uocuments I have come 10 nn opini() II 1h ut mosl arc for e.:neral adm1111~1ratl\ e requirements nnd nol ncces,,1ril) or ,\1lch for legal pt11"p<1,e, . IIO\\C\ er 1,,0 01 the dornments Jr..: m Ill) opi1;inn clcdrl) leg.al JU\ 1cc or op1111,1ns of 1hc Cm,,n Sohrnor· > Oflicc with res pec t to thi s ma tt e r and nrc identi fi cd a~ follow ~: I 1lc PIJL 113,\ 0-18 CorrcsponJcn~c dated June 3 199-1 lrom CrO\\ll sohc1tor to Direcior. Legal and leg1,l:11mn OPI attcntmn Mr Andre\.\ Il ardml.( rile: PDL 01 M 163 Correspondence dated April 13 from Mr Bridgeman 10 Cro'"' \olicitor. a11cn11on Mr I Puhford. All uthcr Jucumc:nts to \\ hich priv ilege is claimed arc to bi.' di,cmcrcd to t he applicant H. l) l· MP<; l-.Y. Com1m"111ncr Apfi<' (/f'Ull('t' ., :- i\ l r J I aw~on and \lr I ll aumganncr ,111d l\lr J \kC,cc ((n,1ru~11.:d h~ BcJforJ A. '\,,ociatc~) for the appl11:an1 Mr I . J.: c n1u:dy and M, l' lu nl,; cu and M. Slllith ll1r the lk part oncn t l> J° Pnmar~ lndu~tm:~ \1r '.1 '>ulll mstruc1cd h~ R. \ l ar,,on for the C. mninal Ju,1m: Commiss ion. Opcra11, .- Date '\ ,\ lkCl',10n - Rcm,tJll:mcnl 1)1,cO\cT) o f Document, l< clca,c<l 21 vlan.:h 19 1)5 #-li#llll#J/lillli-l/lllilf/111111/ll##ll/llt#ililltli##lllill#####ll#ll#tlli##f#i.l/• lll/li/J [3 1 Marc h, 1995 3 1 March, 1995 1 QU EE NSL AND GO VE RNMENT IND UST RI AL GAZETTE 947 1-1~io_ 1 rxx -- 3 of 3 --