Curtis v Penrith City Council [2026] NSWCATAD 36;

1. The Applicant made a GIPA application to the Respondent on 19 September 2024 seeking access to all information regarding complaints for electoral signage displayed on a trailer that led to a fine being issued for $3000. The Application specified that information is to be unredacted "regarding Council staff employees past and current Councillors." The Applicant also sought confirmation as to whether a named Councillor had also been fined the same amount.
2. The information sought relates to enforcement action taken by the Council against a person related to the Applicant. The enforcement action arose from the display of the Applicant's campaign material, at a time when she was running as a candidate in the 2024 local government election.
3. The Respondent made an original decision on 23 October 2024 to provide access to some information and to refuse access to other information. The Respondent did not provide reasons for its decision, and the Applicant sought review by the Information and Privacy Commission (IPC).
4. The IPC's Review report of 28 March 2025 found the Respondent's refusal to provide access to some of the information was unjustified. However the review found the Respondent's decision to refuse a reduction in processing charges and the implied decision that no further information is held was justified. The IPC recommended that the Respondent make a new decision by way of internal review.
5. The Respondent conducted an internal review and in its decision of 17 April 2025 decided to provide access to some information and refuse access to some information. The Respondent maintained the imposition of the processing charge of $120.
6. The Applicant sought administrative review of the decision of the Respondent as follows:

(1) The decision to redact personal information to 10 documents on the basis that there is overriding public interest against disclosure pursuant to s14(2) of the GIPA Act on the basis that they contain personal information of third parties (table 2(a), 3(a) and 3(b)) (documents numbered 10, 13, 14, 15, 17, 18, 20, 24, 25 and 31);

(2) the decision to refuse access to 21 documents that are subject to a claim of legal professional privilege in reliance on s 14(1) and cl 5(1) of Sch 1 the GIPA Act (documents numbered 42 -62); and

(3) Council's decision to impose a processing charge for the time taken to deal with the Application and to refuse to reduce the charge on special public benefit grounds.

1. At the hearing the Respondent informed the Tribunal that it no longer claims that the personal information of third parties contained in documents referred to at [8(1)] above should be redacted. The Tribunal ordered the Respondent to give to the Applicant all information which it agreed by consent to release on or before 29 August 2025. Accordingly the Tribunal does not give further consideration to that information.

1. The issues to be addressed in this review are whether or not:

(1) the conclusive presumption against disclosure applies to the information claimed to be subject to LPP

(2) the processing charge imposed is reasonable and information applied for is of "special benefit" to the public generally entitling the Applicant to a 50% reduction in the processing charge imposed by the Respondent.

1. The Applicant relies on written submissions and made oral submissions at the open hearing.
2. The following documents of the Applicant were before the Tribunal in the open hearing:

(1) Administrative Review Application form filed 24 April 2025 (Exhibit A1)

(2) Applicant's submissions in reply filed 25 July 2025 (Exhibit A2).

1. The Respondent relies on written submissions and made oral submissions in the open hearing.
2. The following documents of the Respondent were before the Tribunal in the open hearing:

(1) Respondent's submissions filed 18 July 2025 (Exhibit R1). At the hearing the Respondent informed the Tribunal that it no longer relies on paras 7(a) and 9-19 of the submissions.

(2) Respondent's Bundle of Documents volume 1 of 3 (Exhibit R2)

(3) Respondent's Bundle of Documents volume 2 of 3 (Exhibit R3)

(4) Correspondence regarding release of personal information handed up 22 August 2025 (Exhibit R5)

(5) Register of Practicing Certificates handed up 22 August 2025 (Exhibit R6).

1. Section 107(1) of the GIPA Act provides that in determining an application for administrative review, the Tribunal 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. Section 107(2) of the GIPA Act provides that on an administrative review, the Tribunal 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 the Tribunal it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
3. In accordance with section 107 of the GIPA Act a confidential hearing was held in the absence of the Applicant, where the Tribunal had the opportunity to consider the Confidential material in issue as follows:

(1) Respondent's Confidential Bundle of Documents volume 3 of 3 (Exhibit R4)

(2) Confidential Bundle noting information released to the Applicant with redactions handed up 22 August 2025 (Exhibit R7).

1. The Tribunal ordered the Respondent to refile the Confidential material to:

(a) clearly identify the documents or parts of the documents over which the Respondent claims Legal Professional Privilege to apply by reference to page numbers, paragraph numbers or other system of identification

(b) clearly identify the documents or parts of the documents that the Respondent has released to the Applicant by reference to page numbers, paragraph numbers or other system of identification

(c) clearly identify duplicate documents or parts of documents and cross reference those documents to the original documents or parts of documents.

1. The Amended Respondent's Bundle of Documents Volume 3 of 3 was filed 8 September 2025.
2. Under the Civil and Administrative Tribunal Act 2013 (NCAT Act):

(1) the disclosure of the content of confidential documents filed by the Respondent is prohibited in relation to the documents found to be subject to legal professional privilege (s 64(1)(d) NCAT Act) and

(2) the publication of the matters contained in the confidential documents and confidential proceedings of the Tribunal is prohibited in relation to documents that are found to be subject to legal professional privilege (s 64(1)(c) NCAT Act).

1. While not disputed by the parties, the Tribunal is satisfied that the Respondent's decision to refuse access to information is a decision reviewable by the Tribunal pursuant to s 80 of the GIPA Act. The Tribunal has jurisdiction to conduct this review pursuant to s 100 of the GIPA Act, read with ss 28 and 30 of the NCAT Act and s 9 of the Administrative Decisions Review Act 1997 (ADR Act).

1. The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination. The Tribunal is not limited to the material before the Respondent or the IPC.
2. The burden of establishing that a decision made under the GIPA Act is justified lies on the agency: s 105(1) of the GIPA Act.

1. Under s 9 of the GIPA Act 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 of that Act, unless there is an overriding public interest against disclosure of the information.

1. If the information is the subject of LPP, it is conclusively presumed that there is an overriding public interest against disclosure of the information: s 14(1), Sch 1 cl 5. Schedule 1 cl 5 relevantly states:

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.

....

1. The conclusive presumption in Sch1 cl 5 of the GIPA Act refers to information that would be privileged from production in legal proceedings on the ground of "client legal privilege (legal professional privilege)." The term "client legal privilege" is found in the Evidence Act 1995 (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: Buttrose v NSW Trustee and Guardian [2023] NSWCATAD 165 at [33].
2. 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 at [95] (Jackson), that common law principles of privilege remain relevant, in particular in construing the meaning and operation of words not defined in the Evidence Act.

1. The essential elements of LPP derive from ss 118 and 119 of the Evidence Act:

(1) the existence of a client and lawyer relationship

(2) confidential communication made between a client and a lawyer, or a confidential document prepared by the client, lawyer or another person

(3) the communication or document was brought into existence for the dominant purpose of providing legal advice to the client, or to provide the client with professional legal services relating an existing, anticipated or pending proceedings.

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made 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 of the lawyers, providing legal advice to the client.

119 Litigation

Evidence is not to be adduced if, on objection by 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.

1. The term "client" is defined in s 117 of the Evidence Act to include a person or body who engages a lawyer to provide legal services or who employs a lawyer and an employee or agent of a client. In this case the documents in issue relate to advice provided to the Respondent by persons employed by the Respondent and from an external law firm.
2. Client legal professional privilege applies to confidential communications between a government agency and their salaried legal officers, provided that there existed, at the time of the confidential communication, a relationship of lawyer and client and the requirements of ss 118 and 119 are otherwise satisfied: Waterford v Commonwealth [1987] HCA 25 (Waterford), (1986)-(1987) [1987] HCA 25; 163 CLR 54, at [4].
3. It is a question of fact as to whether a professional relationship exists between the client employer and the in-house lawyer and whether the in-house lawyer was consulted in his or her professional capacity: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [35] to [41]. Where advice is requested or given outside this professional relationship, the information is not privileged: Jackson at [105].
4. Where an employed lawyer advising in-house also acts in a commercial role, the two will often be intertwined and privilege should not be denied simply on the basis of some commercial involvement. However the person must be acting in a legal context in respect of the documents which privilege is claimed, based on an independent and impartial legal appraisal: Seven Network Limited v News Limited [2005] FCA 142 at [4]- [5]. In that case the court found the in-house counsel was so involved in commercial negotiations that the necessary independence was lacking for some documents.
5. Even where a client-lawyer professional relationship is found to exist, this does not mean that every communication between the lawyer (including the employed legal practitioner) and the client (including a government agency) is thereby privileged. It is only those communications or documents that are confidential and made or prepared for the 'dominant purpose' of the lawyer (in his or her professional capacity) providing legal (professional) advice to the client, or for the dominant purpose of the client being provided with professional legal services relating to litigation: Jackson at [106].

Confidential nature of the communication or document

1. 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. Similarly, a confidential document means a document prepared in circumstances that when it was prepared, the person who prepared it or the person for whom it was prepared, was under an express or implied obligation not to disclose its contents.
2. In Brazel v Sydney Water [2020] NSWCATAD 188, the Tribunal identified the following principles as applying when determining whether information is confidential (at [100], citing Williams v Department of Industry and Investment [2012] NSWADT 192):

(1) The confidential quality of communications is a question of fact.

(2) To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality.

(3) The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed.

(4) The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.

1. The term "dominant purpose" is not defined in the Evidence Act. However, it has been held to mean the "ruling, prevailing, or most influential purpose" that predominates over other purposes and not the "primary purpose" or "substantial purpose" of the client or the lawyer: Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098 at [11], cited in Jackson at 104.
2. The "dominant purpose" of a communication is the prevailing paramount purpose: AWB v Cole [2006] FCA 1234 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] FCAFC 122; (2004) 136 FCR 357 at [366].
3. 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.

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.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

1. Section 125 of the Evidence Act deals with loss of client legal privilege in circumstances of misconduct. That section states:

125 Loss of client legal privilege: misconduct

(1) This Division does not prevent the adducing of evidence of:

(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or

(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:

(a) the fraud, offence or act, or the abuse of power, was committed, and

(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,

the court may find that the communication was so made or the document so prepared.

(3) In this section:

power means a power conferred by or under an Australian law.

Processing charges and special benefit to the public generally

1. Processing charges are dealt with in Division 5 of the GIPA Act. Section 64 states:

64 Processing charge for dealing with access application

(1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application.

Note.

The decision to impose a processing charge is reviewable under Part 5.

(2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in -

(a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or

(b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access).

(3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant.

(4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.

(5) A processing charge must not be discounted under section 65 or 66 by more than 50% even if both sections apply.

1. The Applicant claims an entitlement under s 66 of the GIPA Act to a 50% reduction in processing charge on the basis that the information is of special benefit to the public generally. Section 66 states:

66 Discounted processing charge - special public benefit

(1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally.

Note.

The discount applies only to the processing charge, not the application fee. If a 50% reduction in processing charge applies, the application fee will pay for the first 2 hours of processing time (not just the first hour). See section 64.

A decision to refuse to reduce a processing charge is reviewable under Part 5.

(2) If the information applied for was not publicly available at the time the application was received but the agency makes the information publicly available either before or within 3 working days after providing access to the applicant, the applicant is entitled to a full waiver of the processing charge imposed by the agency.

(3) The Information Commissioner may, for the assistance of agencies, publish guidelines about reductions in processing charges under this section.

1. A decision-maker must decide whether he or she is satisfied that there is a benefit different from what is ordinary or usual to the general public, and thus not merely the private interests of the applicant alone: Shoebridge v Forestry Corporation [2016] NSWCATAD 93 at 23.
2. Information Access Guideline 2-Discounted Processing Charges, published by the Information Commissioner sets out a useful checklist at Appendix 1 of questions to consider when determining whether information sought by an access application has a "special benefit to the public generally."

Special Benefit

1. Does the information concern an issue of public profile or debate?

2. Does the information concern an issue that is unique or distinct from the ordinary or usual (e.g. environment, health, safety, civil liberties, social welfare, public funds etc)?

3. Does the information interest or benefit the public in some other way (e.g. to assist public understanding about government functions)?

4. Would release of the information contribute to further analysis or research?

5. Would the information add to the public's knowledge of the issues of public interest? (e.g. whether the agency or agencies have complied with their obligations under legislation)?

6. Is the information historical which may still have contemporary public importance or add to the public's knowledge of the issues (e.g. where it may inform the public of a state wide view, and assist greater participation and enquiry by the public regarding the issue/s)?[12]

"Public generally"

7. Would any of the following groups in the general public have a special interest in the information?

a) a section of the community (e.g. persons receiving a pension, persons over 65, persons with a disability, persons of a particular racial or ethnic background, or religion etc).

b) a community group (e.g. volunteer rescue groups, volunteer firefighters, youth organisation etc).

c) a group of persons from a particular geographical area (e.g. persons residing in regional NSW, persons residing in a suburb or council area where the information relates to issues, such as waste management proposals, road building proposals

d) a group of people with a shared community interest (e.g. local government constituents, a Parents and Citizens association, student unions or university students generally, advocacy groups etc).

e) persons of a particular occupation or industry sector (e.g. medical practitioners, academics, newsagents).

8. Is the information, if disclosed, likely to lead to broader publication of the information or public discussion, be analysed or likely lead to further analysis?

1. Section 105(1) of the GIPA Act provides that in any review of a decision made by an agency the burden of establishing that the decision is justified generally lies on the agency. However if the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review: s 105(3).

1. The Respondent submits that documents numbered 42-62 are subject to LPP and it is therefore to be conclusively presumed that there is an overriding public interest against disclosure.

1. The Respondent contends that the two employees of the Respondent, Mr Koytz and Mr Bullivant, were acting as independent legal practitioners providing legal advice to the Respondent's Compliance Team. The Respondent provided evidence from the Register of Solicitors from The Law Society of NSW that the employees held practicing certificates as legal practitioners.
2. The Respondent contends that Mr Koytz was (at the relevant time) an in-house solicitor in the Council's Legal Services Team and was providing advice in response to a request for legal advice received by a member of Council's Compliance Team. The Respondent submits that it can be clearly discerned in these circumstances that Mr Koytz was acting in his capacity as a legal practitioner as there is a clear lawyer-client relationship between Mr Koytz and Council's Compliance Team.
3. In relation to advice provided by Mr Bullivant, having regard to the circumstances of this matter and the substance of the communications concerned, the Respondent submits that the Tribunal should be satisfied that Mr Bullivant was acting in his capacity as an independent legal practitioner providing legal advice on this occasion and can be distinguished from the decision of the Court in Seven Network Limited, noting that:

(1) at the relevant time, Mr Koytz' immediate supervisor was the Head of Legal Services, Mr Power. However, that role had only been held by Mr Power from 26 August 2024 (less than one month prior to the date of the relevant communications) and during this transition period Mr Bullivant assisted with the provision of legal services, particularly in a supervisory capacity.

(2) the nature and substance of the advice provided by Mr Bullivant support a finding that the communications were an independent and impartial legal appraisal made for the purpose of advising Council's Compliance Team, and

(3) the advice was being provided to the Compliance Team (which is not under Mr Bullivant's purview) and the ultimate decision to accept the advice and take action in relation to it did not rest with Mr Bullivant's Directorate (Corporate Services) but with Planning and Regulatory Services. Therefore, the Tribunal should find that there was the necessary separation between the regulatory and legal functions in this case. In support of this submission the Respondent provided a copy of its organisational structure (as at January 2025).

1. The Applicant contends that the overlap between legal and administrative / political functions in this case renders privilege inapplicable or waived. That is, the "functional role of the legal advice being administrative/political, not legal."
2. The Applicant contends that Mr Bullivant was not employed specifically as legal counsel, referring to the Respondent's organisational chart which shows him as the Director of Corporate Services, with Mr Power the Head of Legal Services within the Corporate Services Directorate. The Applicant submits that while Mr Bullivant had a practicing certificate, that does not mean he was employed to act as a legal practitioner.
3. The Applicant did not make any submission on the role of Mr Koytz as he is not named in the organisational structure. However the Respondent confirmed that Mr Koytz worked in the Legal Service team.
4. In response the Respondent contends that at the time the advice was provided by Mr Bullivant there was a transitional period in place. There was a new person from New Zealand in the role as Head of Legal Services who did not have an Australian Practicing Certificate at that time. As a result Mr Bullivant assisted with providing legal services. Mr Power's Legal Services team was situated in the Corporate Services Directorate, headed by Mr Bullivant.

1. The Tribunal finds that there is a lawyer and client relationship in the circumstances. Both Mr Bullivant and Mr Koytz were acting as lawyers and provided advice to the Compliance area of the Respondent.
2. There is functional separation between the Corporate Services Directorate where the Legal team is located and the Compliance area who sought the advice. The recipients to whom the advice was provided can be regarded as the "client" with a need to receive the advice due to their respective roles and reporting lines in compliance, governance and election oversight.

1. The Respondent contends that the principles for determining whether information is confidential set out in Brazel at [100] are made out based on an implied pledge of confidentiality, the confidential quality of the information and the nature of the lawyer / client relationship.
2. The Applicant submits that according to Waterford, advice is only protected by LPP if it is truly legal in nature. In this case, the Applicant contends that the advice appears to include procedural and policy discussions, not legal strategies.
3. The Applicant also contends that as the matter that gave rise to the documents has already been resolved in court, the legal advice is no longer sensitive or confidential in context.

1. The Tribunal finds that the communications and documents have the quality of confidentiality, with the exception of the documents referred to at [66]. The communications and documents were prepared between lawyer and client for the purpose of seeking legal advice. The advice provided related to the interpretation and application of the law in particular circumstances. In these circumstances each party would expect and impliedly undertake to keep the information in confidence for the limited purpose for which the advice was sought and provided. This can be ascertained from the face of the documents, not withstanding they are not marked as confidential.
2. Whether the matter may have been resolved in court is not relevant to whether the communications and documents have the quality of confidentiality at the time they were created. LPP persists over time and it is only the client who may waive their privilege.

1. The Respondent contends that it is clear from the communications concerned that they arose in the context of a request for legal advice from a member of the Compliance Team directed to the Legal Services Team and were for the dominant purpose of providing legal advice. While later communications may not directly respond to the original request for advice, it is clear that they arose as a consequence of that original request and were effectively the result of an escalation of the request to a more senior legal practitioner and compliance officer.
2. The Applicant contends that the advice was internal and not provided in anticipation of further litigation. In the Applicant's submission, the lack of ongoing legal risk significantly weakens the basis for continued privilege.

1. The Tribunal finds that the dominant purpose of the communications and documents were for the purpose of seeking and providing legal advice, with the exception of the documents referred to at [66]. This is evident from the circumstances surrounding the communications, as well as from an examination of the documents which advise on the interpretation and application of the law in particular circumstances.

1. The Tribunal finds that Document 46 pages 45-118 and Document 58 page 169 (the first email at top of the page), are not subject to LPP.
2. Document 46 at pages 45-118 contain publicly available material. While the material may have been collated to inform a request for advice, that does not alter the purpose for which the document was prepared. It is not information prepared for the dominant purpose of seeking legal advice.
3. Document 58 page 169 (the first email at top of the page) does not have the character of communication provided in confidence. It is information of a kind already released to the Applicant.

1. The Respondent asked the Director of Planning and Regulatory Services whether he considers it appropriate to waive LPP in this case. It was determined that LPP should not be waived.
2. As well as contending that a resolution of the matter in court waives privilege, the Applicant makes allegations that the documents contain information critical to exposing misconduct and misuse of power by Councillors and Council officers including:

"Harassment via use of council officers' private contact details on a Saturday,

Circumventing established protocols (ignoring council's main contact channels),

Political interference & influence of council officers in electoral signage enforcement intended to suppress campaigning."

1. The Applicant contends that she has seen correspondence noting the original decision was not to issue a fine, and that the decision was later overturned without explanation. The Applicant submits that this reversal raises serious questions as to "Who reversed the decision, on what basis and under whose influence?". The Applicant submits the legal advice and chain of decision-making must be scrutinised.

1. The decision of the Respondent not to waive privilege is not reviewable by the Tribunal: Sch 1 cl 5(3).
2. The Applicant who asserts that there has been a loss of privilege because of misconduct bears the onus to prove the alleged misconduct: Jackson at [119]. The Applicant has not provided evidence that would support an abuse of power. There is no basis on which such an assertion is supported in the disputed information. Accordingly s 125 of the Evidence Act does not apply to waive privilege.
3. A resolution in court of a matter does not waive privilege in documents.

1. On 22 October 2024 the Respondent sent a notice to the Applicant to require advance payment of the processing charge, which was paid by the Applicant on the same day. In paying the charge the Applicant sought waiver of the charge on "public interest grounds."
2. On 23 October 2024 the Respondent issued its decision on the Applicant's GIPA application made 19 September 2024.
3. On 11 November 2024 the Respondent notified the Applicant that the charge would not be reduced. A review by the IPC found that the respondent's decision to refuse to reduce processing charges is reasonable.
4. The Applicant contests the charge on four grounds. First that the Respondent has obligations to appropriately file the information under the State Records Act 1998, and the Respondent's "claim that it needed extensive time to locate the requested records suggests a failure in its statutory recordkeeping responsibilities, not a valid basis for cost recovery."
5. Second, if the Respondent has inefficient processes including "overextended review or decision-making delays internally within Council," the Applicant should not pay for those inefficiencies. Third the imposition of high fees to access information constitutes a barrier to transparency, citing public interest and allegations of misconduct by elected officials. Fourth the information sought by the Applicant has special benefit to the public generally.
6. In particular, the Applicant made representations to the Respondent that the fee should be reduced due to her concerns regarding alleged political interference and misuse of power by a council employee or councillor.
7. The Respondent maintains that the Applicant is not entitled to a reduction in the charge imposed, citing s 97(3) of the GIPA Act which provides that in an Information Commissioner Review, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review (see s 105(3) of the GIPA Act for the provision relevant to review by the Tribunal).
8. In the Respondent's submission the fees charged for the processing of the Application were reasonable and reflect the time taken to deal with the application. In imposing the charge on 22 October 2022 the Respondent set out an itemised list of tasks undertaken and associated costs for 4 hours.

1. The Tribunal interprets the Applicant's submissions as seeking a review of the Respondent's decision to:

(1) impose a processing charge under s 64 of the GIPA Act, reviewable under s 80j GIPA Act and

(2) refuse to reduce the charge on the grounds of special public benefit under s 66 of the GIPA Act, reviewable under s 80k GIPA Act.

1. The Tribunal considers that 4 hours of processing time (to retrieve, review, apply the public interest test, prepare the decision and redactions) is reasonable having regard to the number of documents and pages (206) and the public interest grounds considered. The Respondent's itemised list of activities performed for the cost are expected costs for such an application.
2. In relation to special public benefit, applying Shoebridge, the Tribunal is satisfied that there is a benefit different from what is ordinary or usual to the general public, and not merely the private interests of the applicant alone. Having regard to the IPC's checklist, while the imposition of a fine under the legislation at issue can occur in a range of contexts, in this case the context was an election campaign. In that way, the information sought concerns an issue that is distinct from the ordinary, as it relates to Council actions during an election process.
3. Accordingly the Tribunal finds that the Applicant is entitled to a 50% reduction in the processing charge imposed by the Respondent.

(1) The conclusive presumption against disclosure applies to the information claimed to be subject to LPP, with the exception of Document 46 pages 45-118 and Document 58 page 169 (the first email at top of the page).

(2) The processing charge imposed is reasonable and information applied for is of "special benefit" to the public generally entitling the Applicant to a 50% reduction in the processing charge imposed by the Respondent.

(1) Subject to Order 2, the Respondent's decision not to release documents 42 to 62 on the ground of legal professional privilege is affirmed.

(2) The Respondent's decision not to release Document 46 pages 45-118 and Document 58 page 169 (the first email at top of the page) on the ground of legal professional privilege is set aside.

(3) The Respondent must give the Applicant access to the Documents referred to in Order 2 within 14 days of this decision.

(4) The Respondent's decision to impose a charge is affirmed.

(5) The Respondent's decision not to reduce the charge is set aside.

(6) The Respondent must refund to the Applicant 50% of the charge paid within 14 days of this decision.

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.