Can you keep legal advice to yourself when your decision is challenged?

By Sally Sheppard.

Key Points:
WA Court of Appeal has left open whether legal professional privilege is impliedly waived by a decision-maker when legal advice is used as the basis for decision which is under judicial review.

Keeping its legal advice confidential is suddenly a hot topic for Government, it would seem. We've looked at the spate of recent cases on whether legal advice given to Government is protected from disclosure. In the last few months, yet another case has been decided which has serious implications for Government.

In Minister for Education v Lovegrove Turf Services Pty Ltd [2004] WASCA 305 (20 December 2004), the question was what rights, if any, an applicant for judicial review had to read legal advice given to the decision-maker before he or she made the decision under review. This appears to be the first case in which the question has arisen.

In this case, Lovegrove was close to winning a tender to mow lawns at Western Australian public schools when the Department of Education recalled the tender in response to a complaint. Legal advice was taken before making the decision. Normally, legal professional privilege would attach to that legal advice, meaning that the Department would not be obliged to reveal the advice unless it had already waived the privilege (eg. by revealing the substance or effect of the advice).

Lovegrove sought judicial review of the decision to withdraw the tender, and asked the Western Australian Supreme Court to order the Minister to turn over the legal advice taken before withdrawing the tender.

In its defence, the Minister admitted that the legal advice, with many other things, had been considered when making the decision to withdraw the tender. He also asserted that referring to that advice in his defence did not waive legal professional privilege in the advice.

Incorporating legal advice into the decision

In late 2003 Justice Johnson ordered the Minister to turn over the legal advice to Lovegrove. While legal professional privilege was a "fundamental common law right" that should not lightly be interfered with, she said that "incorporating legal advice into an administrative decision is inconsistent with maintaining the confidentiality of that advice":

In my view, in the context of a judicial review of an administrative decision, maintaining the privilege creates a level of unfairness which serves to highlight the inconsistency which is the cornerstone of the relevant test of waiver. The result is an unintentional and implied waiver of legal professional privilege over the legal advice referred to in… the amended defence.

The Minister appealed.

No evidence of incorporation

When the case went to the Court of Appeal, Lovegrove refined its claim to this: making the content of the legal advice part of the basis for a "within jurisdiction" decision which is amenable to judicial review is inconsistent with maintaining a claim to legal professional privilege.

Crucially, the Western Australian Court of Appeal (Justices McLure and Pullin) did not decide whether this proposition was correct. Instead, it allowed the Department's appeal on two grounds:

• there was nothing in the Minister's defence that expressly or impliedly said the legal advice had been incorporated into the original decision. Merely referring to the existence of legal advice was not enough to waive the privilege protecting that advice (the Minister accepted that it could not rely on the content of the advice in the proceeding).
• it was not clear that the original decision was one that could be the subject of judicial review. Justice Johnson seems to have assumed it was. The Minister however said in his defence that it was not, so the issue was in dispute and had not been settled at the time the order to turn over the advice was made.

Will this be a problem in the future?

It's unfortunate that the Court did not think it appropriate to deal with the correctness of this once and for all. It would be surprising if another applicant for judicial review doesn't argue this again. Judicial review is all about looking at the process of decision-making, including the matters considered by the decision-maker. Legal advice would be a matter considered by the decision-maker.

Having said that, Lovegrove did not argue that it should be able to see the legal advice just because the decision-maker relied upon it. It argued it should have access to it because it was incorporated into the decision or its content was part of the basis for the decision. It's unclear what this actually means. It might be nothing more than a clumsy restatement of the familiar test of implied waiver we looked at in the last edition of Insights - has the substance or effect of the legal advice been disclosed?

If it means more than that, then it could be difficult for decision-makers to preserve privilege where any resulting decision is amenable to judicial review. This could be a powerful deterrent to getting legal advice in the first place (or at least legal advice in writing), with a flow-on effect on the quality of decision-making generally.

Postscript

Justice Johnson's decision at first instance has been followed in the Federal Court. In Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649 (24 May 2005), Justice Lee held that legal advice was incorporated into an administrative decision and that proper understanding of the decision, and of the decision-making process undertaken, depended upon examination of the advice relied upon. Applying the trial decision in Lovegrove, it was held that as a matter of fairness the decision-maker could not maintain a claim to client legal privilege in respect of that advice.

The decision is also notable in that the legal advice was given by lawyers who did not hold a practising certificate. Justice Lee held that determining whether client legal privilege arose was a question of fact ie. "whether the client and the practitioner expected and accepted that the obligations of an independent legal practitioner were to be met by the practitioner". This contrasts with the decision in Vance v McCormack [2004] ACTSC 78, which we considered in the last Insights. An appeal was heard in May and we look forward to the appeal court's views on this important issue.

For further information, please contact Sally Sheppard.