Buttrose v NSW Trustee and Guardian

NCAT Administrative and Equal Opportunity|2023-05-15|Before: Lindsay J

, other than to the respondent (NSW Trustee & Guardian), is prohibited.

Background

These proceedings concern a request that Richard William Buttrose (the applicant) made to the NSW Trustee and Guardian (the respondent) on 13 December 2022 for the release of documents under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act), in the following terms: On 17 November 2021, the NSW Trustee & Guardian commenced Supreme Court litigation against me in the matter of Buttrose v Buttrose: Case 2021/327367. On 22 July 2022, Joanna Brouwer, solicitor for the NSW Trustee & Guardian, swore the "Affidavit of Joanna Brouwer", which was filed in these proceedings. Attached to Joanna Brouwer's Affidavit was "Exhibit JCB-1". On 25 July 2022, Justice Lindsay stated in the Supreme Court that the NSW Trustee & Guardian should retain a copy of "Exhibit JCB-1" in case it "is required for production at any time". His Honour then ordered that "Exhibit JCB-1" to the Affidavit of Joanna Christine Brouwer sworn 22 July 2022 be returned to the NSW Trustee & Guardian". Accordingly, I require access to "Exhibit JCB-1".
In this decision, I have referred to the "Exhibit JCB-1" as "the disputed exhibit".
The GIPA request followed a decision made by the Guardianship Division of this Tribunal on 28 November 2022: 2019/00387553, in which the applicant sought review or revocation of a Financial Management Order in which his mother was named as "the person". The Tribunal dismissed that application and provided reasons which included the following: 47. The Supreme Court proceedings issue TAG says that the matter was resolved with the approval of Lindsay J in the Supreme Court in accordance with the normal practices and procedures of the Court in its parens patriae jurisdiction. That approval indicates that the Supreme Court considered the terms of the compromise to be consistent with Mrs Buttrose's interests, and it is neither appropriate nor useful to go behind the Supreme Court's decision: it speaks for itself and as to the reasonableness of the compromise from Mrs Buttrose's perspective. In accordance with normal procedure, in reaching that conclusion the Court was provided with an objective assessment by counsel of Mrs Buttrose's prospects in the proceedings. This is a confidential and privileged document prepared for the purposes of seeking the Court's approval of the compromise and TAG does not consider that it is Mrs Buttrose's interests to waive that privilege by circulating the document… The Tribunal's decision 65. The Tribunal was unconvinced by Richard's submissions that TAG was incompetent or lacking in diligence in its management of Mrs Buttrose's estate. Of the issues which he raised: (1) Some were without foundation: (a) the ING bank account issue was demonstrably baseless, and (b) while partisan views may vary between family members as to the outcome in both cases, the Supreme Court considered fully and approved, in the exercise of its parens patriae jurisdiction, the compromises proposed by TAG on Mrs Buttrose's behalf in those proceedings; the Court's sanction put an end to all legal controversies considered in those proceedings, and renders both the Supreme Court issue and the Double Bay Property issue, as agitated in this application by Richard, immaterial to the present enquiry…

Procedural directions

On 7 February 2023, Senior Member Perrignon conducted a case conference, at which the applicant appeared in person and the respondent was represented by H Muruste and J Brouwer. The Senior Member made the following orders: 1. The Information Commissioner appears and has a right to be heard in these proceedings but is not a party. 2. The decision made by the NSW Trustee and Guardian on 22 December 2022, to the effect that the access application was invalid, is returned to the NSW Trustee and Guardian for reconsideration. By 13 February 2023, the NSW Trustee and Guardian is to file and serve a new decision, noting the respondent's advice at case conference that the new decision will be to decline access on the grounds provided by Schedule 1(5) and (5A) of the Government Information (Public Access) Act 2009. 3. The NSW Trustee and Guardian to give to the Tribunal and all other parties the following material: evidence including statements, documents and submissions on or before 27 February 2023. 4. The Respondent is to give to the Tribunal the following material on a confidential basis by 27 February 2023: (a) documents considered to be subject to a conclusive overriding public interest against disclosure in a sealed envelope marled "conclusive presumption documents"; and (b) documents considered to be subject to a non-conclusive overriding public interest against disclosure in a sealed envelope marked "non-disclosure documents". 5. Richard William Buttrose is to give to the Tribunal and all other parties the following material: evidence including statements, documents and submissions on or before 27 March 2023. 6. The NSW Trustee and Guardian is to give to the Tribunal and all other parties the following material: all evidence in reply, submissions and a summary of legal arguments on or before 10 April 2023. 7. Richard William Buttrose is to give to all other parties the following material: a list of all witnesses required for cross-examination on or before 10 April 2023. 8. The NSW Trustee and Guardian is to give to all other parties the following material: a list of all witnesses required for cross-examination on or before 10 April 2023. 9. Grant leave to the Information Commissioner to file and serve submissions on or before 17 April 2023 if desired 10. Grant leave to the parties to approach the Registrar for a mediation date. 11. The proceeding is listed for hearing on 15 May 2023 …

Further decision

On 13 February 2023, the respondent issued a Notice of Decision - Reconsideration under the GIPA Act. It decided to refuse access to the requested information under ss 14(1), 58(d) and cll 5 and 5A of Sch 1 to the GIPA Act, because that information is subject to legal professional privilege and it is conclusively presumed to the subject to an overriding public interest against disclosure.
The respondent identified the disputed exhibit as the information within the scope of the GIPA request. In relation to the Public Interest test, the respondent stated, relevantly: 5. Legal professional privilege and the release of government information. Legal professional privilege protects confidential communications

Miscellaneous Application

On 27 February 2023, the respondent filed a Miscellaneous Application with the Tribunal, which sought an order that the hearing date be vacated and that the matter be determined on the papers. However, the applicant did not consent to this.
The Tribunal declined to determine the matter on the papers and confirmed the hearing date.

The hearing

I conducted a hearing of this matter on 15 May 2023, at which the applicant appeared in person and Ms K Mattes, Crown Solicitor's Office, appeared for the respondent. The Information Commissioner had advised the Tribunal that she did not intend to file submissions or participate in the matter.

The evidence

The respondent filed the following documents: 1. Open Tender Bundle; 2. Affidavit of Darryl Ian Browne dated 27 February 2023. 3. Packet of confidential documents marked "documents subject to conclusive overriding public interest against disclosure: 4. Packet of confidential documents marked "Conclusive presumption documents; and 5. Written submissions dated 27 February 2023;
The applicant did not file any evidence, but he did file lengthy written submissions.

Evidence of Darryl Browne

The applicant did not require Mr Browne to attend for cross-examination and his Affidavit was admitted into evidence and marked Ex 1.
Mr Browne deposed that he is a legal practitioner who acted for Robyn Buttrose (the Plaintiff) in Supreme Court proceedings 2021/327367, in which she sued two of her children, Katherine Buttrose (First Defendant) and the applicant (Second Defendant). The proceedings were brought by the respondent as the Plaintiff's tutor. On 10 May 2023 (sic), that parties attended a mediation, but the matter failed to resolve. On 24 May 2022, the Plaintiff made Calderbank offers to the First and Second Defendants. The First Defendant accepted the offer, but the proceedings against the Second Defendant were resolved by the Plaintiff accepting his counter-offer.
Mr Browne stated that as the Plaintiff was an incapable person, resolution of the proceedings required approval of the Supreme Court. He stated that in an email to the Second Defendant dated 15 June 2022, he outlined the process for obtaining the Court's approval and he annexed a copy of that email to his affidavit (Annexure A).
On 1 June 2022, he briefed the Plaintiff's counsel, Dr Simon Chapple, to draft a skeleton Affidavit and confidential advice to the Court outlining the basis for the Plaintiff seeking the Court's approval for the resolution. This was the Affidavit that Joanne Brouwer swore on 22 June 2022. The disputed exhibit to that Affidavit comprises a confidential advice prepared by Plaintiff's counsel to assist the Court to decide whether approval should be given to the proposed settlement of the proceedings. This was tendered separately to the Court on 25 July 2022.
Mr Browne deposed that the disputed exhibit was not served on the Defendants in the proceedings and, as far as he is aware, was not provided to anyone other than to the Plaintiff's legal representatives and Tutor and the Court. After the Court approved the settlement, the Associate to Justice Lindsay sent the parties an "Associate's Record of Proceedings".

Respondent's written submissions

The respondent stated that it was appointed by the Tribunal (Guardianship Division) as financial manager for Mrs Buttrose under the NSW Trustee and Guardian Act 2009.
In November 2021, the respondent commenced proceedings in the Supreme Court on behalf of Mrs Buttrose and the applicant was named as second defendant in those proceedings. Those proceedings were ultimately resolved with approval of Lindsay J on 25 July 2022, in accordance with the normal practice and procedure of the Supreme Court in its parens patriae jurisdiction. This included the tender of an affidavit of Ms Brouwer to the Court, and the disputed exhibit was tendered separately on a confidential basis, to assist the Court in determining whether to approve the proposed settlement.
Following settlement of the Supreme Court proceedings, the applicant sought a review of the financial management order by the Tribunal. One of the concerns that he raised was the respondent's conduct of the Supreme Court proceedings and its refusal to provide him with access to the disputed exhibit. On 28 November 2022, the Tribunal dismissed the application for review and confirmed the respondent's appointment as financial manager.
The GIPA request that is now before the Tribunal seeks access to the disputed exhibit. In its remitted decision dated 13 February 2023, the respondent decided to refuse access to the requested information on the grounds that there was a conclusive presumption that the information was subject to an overriding public interest against disclosure (cll 5 and 5A of sch 1 of the GIPA Act).
Section 14(1) of the GIPA Act provides that certain information is subject to a conclusive presumption of an overriding public interest against disclosure, as follows: It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
Clause 5(1) of sch 1 sch 1 provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
Further, cl 5A of sch 1 provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a document that, in response to a court order, subpoena or otherwise - (a) was a document a person objected to producing in any court proceedings on the grounds that the document was a privileged document, and (b) was not compelled by a court to be given or produced on the grounds of privilege.
Pursuant to cl 6 of sch 1, it is also conclusively presumed that there is an overriding public interest against disclosure of "excluded information" of an agency. Having regard to cl 1 of sch 2 of the GIPA Act, "excluded information" includes information relating to the exercise of the judicial functions of a court.
Section 58 of the GIPA Act sets out how access applications may be decided by agencies. Relevantly, an agency may decide to refuse to provide access to information because there is an overriding public interest against disclosure (s 58(1)(d)).
A decision to refuse access is a "reviewable decision" under the terms of s 80(d) of the GIPA Act. A person aggrieved by a "reviewable decision" may seek review of that decision by the Tribunal under s 100 of the GIPA Act. The onus is on the respondent to establish that the decision is justified (s 105(1)).
Section 107 of the GIPA Act sets out the procedures that the Tribunal may observe when considering information that is subject to an overriding public interest against disclosure. Relevantly: a. s 107(2) requires the Tribunal to receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if, in the opinion of the Tribunal, it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure; and b. s 107(3) requires the Tribunal, on the application of an agency, to receive evidence and hear argument in the absence of the public and the applicant, and the applicant's representative if the Tribunal is of the opinion it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
For the avoidance of doubt, the respondent applied under s 107(3) for the Tribunal to receive a confidential bundle of documents on a confidential basis that that the applicant and any other person be excluded from access in order to prevent disclosure of information that is said to be subject to an overriding public interest against disclosure.
The respondent that the Tribunal is required to determine what the "correct and preferable decision is" (s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).
The respondent stated that the reviewable decision in this matter is the remittal decision dated 13 February 2023. In that decision, it relied upon cll 5 and 5A of sch 1 of the GIPA Act, but it also sought to rely upon an additional ground for finding that the disputed information is conclusively presumed to be subject to an overriding public interest against disclosure - namely that it is excluded information of the Supreme Court.

Clause 5 of sch 1 - Legal Professional Privilege

The respondent stated that the term "client legal privilege" is found in the Evidence Act 1995 (NSW) (the Evidence Act) and it is used interchangeably with the term "legal professional privilege", a concept understood to encompass both the statutory formulation and common law principles of privilege. While the Tribunal has tended to apply the statutory formulation of privilege when considering the application for the conclusive presumption, the Tribunal observed in Jackson v University of New South Wales [2019] NSWCATAD 224, that common law principles of privilege remain relevant, in particular in construing the meaning and operation of words not defined in the Evidence Act.
The Evidence Act recognises two classes of privilege: advice privilege and litigation privilege. Section 118 of the Evidence Act provides for the circumstances in which advice privilege may be claimed as follows: a. a confidential communication made between a client and a lawyer, or b. a confidential communication between 2 or more lawyers acting for the client, or c. the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more lawyers, providing legal advice to the client.
Section 119 of the Evidence Act provides for the circumstances in which litigation privilege may be claimed, in the following terms: Evidence is not to be adduced if, on objection of a client, the court finds that adducing the evidence would result in disclosure of - a. a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or b. the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the Court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
The "dominant purpose" of a communication is the prevailing paramount purpose: AWB v Cole [2006] FCA 1234 (Young J at [44]), which can be discerned by asking why the information was brought into existence and what was the intended use: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Finn J).
The term "confidential communication" is defined in s 117 of the Evidence Act to mean a communication made in circumstances where the person who made it, or the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not that obligation arises under law.
The term "client" is defined to include a person or body who engages a lawyer to provide legal advice or who employees a lawyer and an employee or agent of a client.
A claim of privilege can be established by evidence about the circumstances surrounding the communications, as well as from inference from the document itself: Re Southland Coal Pty Ltd (Receivers and Managers appointed) (in liq) [2006] NSWSC 899 at [28]). In some circumstances, an examination of the document itself will be sufficient. As the Tribunal concluded in Chamley v Sydney Children's Hospital Network [2013] NSWADT 197: 32 In some cases it will be obvious from an examination of the written communication itself that the dominant purpose of the communication was the provision of legal advice. That is the case with the document in issue in this matter. In any event, the evidence on which the Respondent relies places it beyond doubt… 38. There is no doubt that a solicitor engaged by the Respondent created the document. It is readily apparent from a consideration of the document that it comprises legal advice provided in response to a request by the Respondent. In my view, it is information to which legal professional privilege applies.
In this matter, it is clear from the evidence of Mr Browne and examination of the disputed exhibit, that this is a document that satisfies each of the elements of both legal privilege and litigation privilege, as it is: 1. Prominently marked "PRIVILEGED AND CONFIDENTIAL" and bears the heading "Confidential Memorandum of Advice"; 2. A communication from counsel, engaged on behalf of the Plaintiff by her Tutor; 3. A communication that is, self-evidently, for the dominant purpose of providing legal advice; and 4. Also a confidential document prepared for the dominant purpose of the provision of legal services in relation to proceedings that were, at the time it was prepared, current before a Court.
The respondent did not waive privilege in the tender of the disputed exhibit to Justice Lindsay during the Supreme Court proceedings. The disputed exhibit was provided to the Court on a confidential basis, for the purpose of seeking the Court's approval of a compromise settlement, in the exercise of its parens patriae jurisdiction.
After considering the disputed exhibit, the Court ordered that it be returned to the respondent so that it did not form part of the Court file. The confidentiality of the document was expressly reflected in the Court's orders of 25 July 2022 (see Ex 1 at para 8 and annexures "A" and "B"). The disputed exhibit was not served on the other parties to the proceedings and has not otherwise been distributed or disclosed in a manner inconsistent with its confidential character (see Ex 1 at para 9).
Having regard to the circumstances in which the disputed exhibit was provided to the Court, the purpose for which it was provided, and the measures employed by the Court to preserve its confidentiality, the respondent argued that there has not been a waiver of privilege in the sense envisaged at common law. Its conduct in providing the disputed exhibit to the Court on the limited confidential basis, was not conduct that was "inconsistent with the maintenance of that confidentiality which the privilege is intended to protect": Mann v Carnell (1999) 201 CLR at 13.
Further, there has been no waiver of privilege under the terms of s 122 of the Evidence Act. In Macedonian Orthodox Community v His Eminence Petar (2006) 66 NSWLR 112, the Court of Appeal determined that there had been no waiver of privilege by the tender of legal advice in support of an application for judicial advice under the Trustees Act 1925. The majority of the Court held that a court is not "another person" within the meaning of s 122 of the Evidence Act.
The respondent stated that an analogy may be drawn with circumstances where there is a class action settlement, and confidential advice is tendered for the Court's consideration but not disclosed to group members. The Federal Court found that privilege was not waived in those circumstances in Jarra Creek Central Packing Shed Pty Limited v Amcor Limited [2011] FCA 671 (at [157]) and Wingecarribee Shire Council v Lehman Brothers Australia Limited (in liq) (No 9) [2013] FCA 1350 (at [105]).
The respondent decided that it is not appropriate to waive privilege in this matter by providing access to the disputed exhibit under the GIPA Act, noting that the privilege is that of its client (Mrs Buttrose). Clause 5(3) of sch 1 of the GIPA Act confirms that this is not a reviewable decision.
Therefore, the disputed exhibit is conclusively presumed to be subject to an overriding public interest against disclosure, as it is a document that it subject to a claim of legal professional privilege.

Clause 5A of Sch 1 of the GIPA Act - Privilege generally

The respondent stated that further, or in the alternative, the disputed exhibit is a document that falls within the terms of cl 5A, as it is a document that "in response to a court order, subpoena or otherwise… was not compelled by a court to be given or produced on the grounds of privilege". Disclosure under the GIPA Act would be contrary to the express orders and arrangements made by the Supreme Court to preserve the confidentiality of a memorandum of advice.

Clause 6 of Sch 1 of the GIPA Act - Excluded information of a court

The respondent also argued that there is a conclusive presumption that there is an overriding public interest against disclosure of the disputed exhibit as it relates to the judicial functions of the Supreme Court.
Exhibit 1 in these proceedings contains evidence that the purpose for which the confidential memorandum of advice was obtained, and subsequently tendered to the Supreme Court, was to outline the basis for the Plaintiff seeking the Court's approval of the proposed settlement. The Supreme Court had regard to the disputed exhibit at the hearing on 25 July 2022 before deciding to approve the settlement. It is therefore clear that the disputed exhibit was integral to the Court's decision-making process and that it contained information that related to the judicial functions of the Court.
The respondent conceded that it had not asked the Supreme Court whether it consents to the disclosure of the disputed exhibit, but that the Tribunal may be satisfied that the Court does not consent to disclosure in circumstances where it took measures and made express orders to preserve the confidentiality of the disputed exhibit and where provision of the disputed exhibit would be contrary to those measures.
Accordingly, the respondent concluded that the correct and preferable decision is to refuse access to the disputed exhibit and affirm its decision dated 13 February 2023.
However, if the Tribunal did not accept that the disputed exhibit is subject to a conclusive presumption of an overriding public interest against disclosure, the respondent argued that the appropriate order is to remit the matter to it for further consideration.

Applicant's submissions

The applicant filed lengthy written submissions, which I have summarised below.
On 21 October 2022, in apparent defiance of Justice Lindsay's obiter dicta, the Court orders and the Uniform Civil Procedure Rules 2005 (the UCPR), the respondent refused to produce the disputed exhibit to him.
The applicant stated that he made a legitimate and lawful application for access to the disputed exhibit under the GIPA Act. He was a party to the Supreme Court proceedings in which he was served with Ms Brouwer's affidavit (to which the disputed exhibit was attached). Part 35, rule 35.6 of the UCPR provides that the respondent must produce or provide him with a copy of it.
In Ex parte Cox (1887) 20 QBD 1, the Court held that statements made in obiter dictum are 'entitled to great weight': per Lord Esher: When a judge has thought it necessary for the purpose of the case to make a deliberate examination of the practice of his Court, and to state such practice, I do not think the authority of such statement can be got rid of merely by arguing that it was not really necessary for the actual decision of the case. I think that such a statement if cited as an authority is entitled to great weight.
On 25 July 2022, Lindsay J stated: It would not be unusual for an opinion of counsel in these circumstances to be treated as confidential but I think the way to do it, subject to my seeing it, is to return the opinion effectively to the NSW Trustee so it can and should retain a copy of that if it is required for production at any time.
On 25 July 2022, Lindsay J ordered, inter alia: Exhibit JCB-1 to the Affidavit of Joanna Christine Brouwer sworn 22 July 2022 be returned to the NSW Trustee as manager of the protected estate of the Plaintiff.
The applicant stated that s 105 of the GIPA Act provides that the onus is on the agency to justify the decision not to provide access to a requested document. However, it is manifest from their submissions that the respondent has failed to satisfy s 105. That is, they have not demonstrated that there is an overriding public interest against disclosure. He therefore sought an order that the respondent provide him with access to the disputed exhibit.
I note that the applicant did not make any submissions in relation to the public interest grounds against disclosure raised by the respondent.
However, during the hearing, the applicant argued that there could not be any proper claim for privilege over the disputed exhibit because it was prepared "in perpetration of a fraud".

Confidential hearing

The issues in dispute in this matter is whether there is a conclusive presumption against disclosure of the disputed exhibit, pursuant to cll 5, 5A and/or 6 of sch 1 to the GIPA Act.
In order to properly consider and determine this issue, the Tribunal determined that it was necessary to conduct a confidential hearing in the absence of the applicant and this hearing was conducted in accordance with s 107 of the GIPA Act and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
During the confidential hearing, the Tribunal examined the disputed exhibit and heard oral submissions from Ms Mattes.
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Otherwise, Ms Mattes relied upon the respondent's written submissions.
The Tribunal then concluded the confidential hearing and resumed the open hearing.

Resumption of the open hearing

When the open hearing resumed, the Tribunal made an ex-tempore ruling, that the advice is comprehensive and lays bare the inconsistent evidence given by the applicant's sister in the Supreme Court proceedings and NCAT Guardianship proceedings, which was made available to Lindsay J in the Supreme Court when his Honour approved the proposed settlement.
The Tribunal stated that there is not basis upon which it could be satisfied to the required standard of proof that the advice was prepared in perpetration of a fraud and that privilege was therefore waived by the respondent.
Upon completion of the open hearing, the Tribunal reserved its decision.

Legal principles

The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the ADR Act, which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

The GIPA Act

In respect of access applications, s 9(1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
I am satisfied that the Reconsideration Decision dated 13 February 2022 (as varied by the respondent in its written submissions filed on 27 February 2023) is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.
However, I note that by operation of cl 5(3) of sch 1, the respondent's decision to not waive legal professional privilege is not reviewable.
In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.
Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).
Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows: 53. Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Section 55 of the GIPA Act refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. This provides: 55. Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
Section 107 of the GIPA Act provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
Clause 5 of Sch 1 of the GIPA Act provides: 5. Legal Professional Privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
Clause 5A of Sch 1 of the GIPA Act provides: 5A Privilege generally It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a document that, in response to a court order, subpoena or otherwise - (a) was a document a person objected to producing in any court proceedings on the grounds that the document was a privileged document, and (b) was not compelled by a court to be given or produced on the grounds of privilege.
Clause 6 of Sch 1 of the GIPA Act provides: 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.

Legal professional privilege

I accept the respondent's submissions that having regard to the circumstances in which the disputed exhibit was provided to the Supreme Court, the purpose for which it was provided and the measures employed by that Court to preserve its confidentiality, there has not been a waiver of privilege in the sense envisaged at common law. Rather, the respondent's conduct in providing the disputed exhibit to the Court on a limited confidential basis, was not conduct that was "inconsistent with the maintenance of that confidentiality which the privilege is intended to protect": Mann v Carnell (1999) 201 CLR at 13.
I am satisfied that the disputed exhibit is properly protected by legal professional privilege under sch 1 cl 5 of the GIPA Act. It follows that I am satisfied that there is an overriding public interest against disclosure of the information contained in that disputed exhibit.
I am also satisfied that the cl 5A of sch 1 of the GIPA Act applies to the disputed exhibit, as it was a document that the respondent objected to producing it in the Supreme Court proceedings on the basis that it was a privileged document and it was not compelled by the Court to produce it on grounds of privilege.
It follows that I am satisfied that there is an overriding public interest against disclosure of the information contained in the disputed exhibit.
In view of my findings in relation to cll 5 and 5A of schedule 1, it is not necessary to determine whether there is also a conclusive presumption that there is an overriding public interest against disclosure of the disputed exhibit on the basis that it is "excluded information" of an agency under cl 6 of sch 1 of the GIPA Act.
Further, it is also not necessary to apply the public interest test to this matter.
Based upon the confidential evidence, which I have considered, I confirm my ex-tempore ruling that there is no evidence that there is no proper claim for privilege over the disputed exhibit because it was prepared in perpetration of a fraud.
I am of the view that the applicant's reliance upon Lord Esher's decision in Ex Parte Cox does not assist his cause.
I am also satisfied that the UCPR do not apply to proceedings in this Tribunal. Therefore, the applicant's purported reliance upon the UCPR, in an attempt to compel the respondent to produce the disputed exhibit in these proceedings, is misconceived.

Conclusion

For the reasons set out above, pursuant to s 63(3)(a) of the ADR Act, the decision of the respondent dated 13 February 2022, as varied by its written submissions filed on 27 February 2023, is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2023

Trustee and Guardian Act 2009(NSW)

Government Information (Public Information) Act 2009(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (21)