Case: Barnes v Commissioner of Taxation [2007] FCAFC 88
Outcome: referred to
The applicant made two submissions in the alternative. The first related to all the documents in dispute and relied on the fact that Mr Ronson decided on or about 18 August 2006 that legal advice would be sought in relation to the matter being investigated. The submission was that once Mr Ronson decided that he was not going to be able to determine whether there had been a breach of the Act , or whether to recommend the institution of proceedings, without obtaining legal advice, the documents brought into existence thereafter were brought into existence for the main purpose, or the ruling or prevailing purpose, of obtaining legal advice. I am unable to accept this broad submission. Even though I accept Mr Ronson's evidence that on or about 18 August 2006 he decided that it would be necessary for him to seek legal advice, that fact supports, at its highest, only the conclusion that obtaining legal advice was one purpose, alongside the admitted investigatory purpose. To prove the asserted privilege, the applicant is required to show that obtaining legal advice was the dominant purpose. Without 'focused and specific evidence' ( Barnes v Commissioner of Taxation [2007] FCAFC 88 at [18] per Tamberlin, Stone and Siopis JJ) I am unable to find that obtaining legal advice was the dominant purpose behind the creation of the documents. I wish to make clear that I do not regard Mr Ronson's evidence as being in the nature of bare assertions as to his purpose. His evidence usefully explains the particular circumstances of the relevant investigation, including the political and media interest, and how they informed him in reaching the view that seeking legal advice would be necessary. But it does not follow that obtaining legal advice was his dominant purpose in creating any of the several documents, let alone all of them as a general class of document defined only by the fact that they were created after 18 August 2006. 17 The applicant's second submission, put in the alternative, was that the interview documents were privileged. The submission was that those documents either would not have been created but for the purpose of obtaining legal advice, or, if they would have been created regardless, would not have been created at the time that they were in fact created. As a matter of legal principle, this is a sounder basis upon which to assert a claim for legal professional privilege. The applicant conceded that this submission cannot support each claim for privilege made, but only the claims in respect of what I have called the interview documents. 18 I am not satisfied that the evidence before me supports the alternative submission. Mr Ronson did not suggest in his evidence that statements from witnesses would not be obtained in investigations where there was no intention to seek legal advice. His evidence was only that statements were taken more formally where, as in the present case, seeking legal advice was intended. The more formal procedure involved seeking authorisation to record the witness' voice, issuing a caution to witnesses and advising the witnesses that legal proceedings may eventually be instituted. It is not clear on the evidence whether in the present case the reduction into documentary form of the information obtained in the investigation occurred for the dominant purpose of obtaining legal advice. It was for the applicant to establish that, and he has not done so. 19 In the result, I am not satisfied that the dominant purpose for the creation of the documents was the obtaining of legal advice. 20 As I have said, the OWS was an executive agency. The Legal and Advice Branch was a branch of the OWS or, as Mr Ronson put it in the context of the Workplace Ombudsman, its "central legal division". I think it is appropriate to infer that there are qualified lawyers within the Legal and Advice Branch and that they were employees of the OWS.