Franks v Warringah Council [1999] NSWLEC 65 | Case summary

REASONS FOR DECISION 1 The appellant, Mr Franks, applied on 9 August 2005 under the Freedom of Information Act 1989 (FOI Act) to the respondent agency, Warringah Council, for access to documents regarding - · illegal seawall construction on Collaroy/Narrabeen beach, · the Council's prosecution of Mr Franks in the Land and Environment Court, and · its pursuit of bankruptcy proceedings against him. 2 Some understanding of the context giving rise to the access application may be obtained from the Land and Environment Court judgments reported as Warringah Council v Franks & Ors [1999] NSWLEC 65 (19 March 1999) and Warringah Council v Franks & Ors [2003] NSWLEC 193 (29 August 2003). 3 The 1999 case concerned an application by the Council for permanent orders to be made against Mr Franks. The judge, in his decision rejecting the Council's application, refers to the history that gave rise to the Council's application. In response to a massive coastal storm on 10 and 11 May 1997, Mr Franks took what he saw as necessary emergency action to build a sea wall in front of his property which faced the coast and was suffering erosion. He did not have planning permission. The judgment then notes that the appellant disobeyed an interlocutory injunction to desist from any further works. This gave rise to proceedings against him for contempt of court. He was found guilty and fined. This had led the Council to apply for a prohibitory injunction; and a mandatory injunction requiring him to demolish the partly constructed wall and restore the land. As noted, the Court rejected the application. 4 The 2001 case concerned an application brought by Mr Franks. He sought a permanent stay of costs orders made against him in the contempt proceedings and in yet another set of proceedings. In the course of its judgment rejecting the application, the Court referred to an assertion made on affidavit by Mr Franks that the Council and its solicitors 'have engaged in a course of conduct designed to cause grave commercial and financial harm to me to the point of bankrupting me'. 5 The application for documents the subject of these proceedings was made to the Council on 9 August 2005. The Council's determination on internal review is dated 1 November 2005. The application to the Tribunal for review was made on 7 November 2005. 6 The Council refused to disclose numerous documents in whole or in part, on the ground that they contained exempt matter, referring in particular to the exemptions provided by cl 6 of Schedule 1 to the Act (unreasonable disclosure of personal affairs) and cl 10 of that Schedule (legal professional privilege). The Tribunal affirmed the Council's determination: Franks v Warringah Council [2006] NSWADT 124. Appeal 7 Mr Franks now appeals. An appeal may be made on a question of law and, with the leave of the Appeal Panel, may be extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113. The Appeal Panel's discretion to extend to the merits is not fettered by any need to demonstrate an error of law or an arguable error of law: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. 8 The original notice of appeal was replaced by an amended notice of appeal and then a further amended notice of appeal filed 17 July 2006. The further amended notice of appeal alleged 13 errors of law and, in addition to relying on the errors of law as a basis for extending the appeal to the merits, gave two further grounds as to why the appeal should be extended. However, at the hearing of the appeal, counsel for Mr Franks restricted the appeal to four grounds, all cast as points of law. Counsel expressly withdrew the application for leave to extend to the merits. The Tribunal's decision so far as it applied cl 6 (unreasonable disclosure of personal affairs) is not challenged. The challenge relates to the Tribunal's application of the legal professional privilege exemption. 9 The four points follow. The numbers that appear below each point refer back to the error of law grounds (1-13) as listed in the further amended notice of appeal. Point 1 : Application of incorrect test. The contentions are that the Tribunal erred: 1. By finding that it is the common law test of legal professional privilege that must be applied in respect of cl 10(1). 2. By not finding that it is the common law test and the statutory tests found in the Evidence Act 1995 that should be applied in order to determine legal professional privilege for the purposes of cl 10(1). Point 2: Misapplication of correct test/not concluding access should be granted. The contentions are that the Tribunal erred: 3. By not giving due weight to, and/or misapplying, the legally enforceable right to documents for the purposes of ss 16 and 17 of the FOI Act. 6. By not finding there was evidence to support the contention that legal professional privilege for the purposes of the Evidence Act 1995 and the common law did not apply in the circumstances and/or had been lost and/or waived. 7. By finding that numerous documents were exempt documents for the purposes of cl 10(1) and not capable of production under ss 16 and 17 of the FOI Act. 12. By considering tests for exempt documents globally rather than applying the tests individually to each document which was before the Tribunal. Point 3: Natural Justice, Tender of Statements of Claim. The contentions are that the Tribunal erred: 4. By failing to allow the tender of the statement of claim, thus denying the appellant natural justice/procedural fairness. 13. Further, or, in the alternative, in the event that leave to appeal in respect of ground 4 is needed, the appellant seeks leave to appeal the same, and that leave application to be heard at the same time as the hearing of the appeal. Point 4: Inadequate reasons. The contention is that the Tribunal erred: 9. By failing to give any and/or sufficient reasons for its determination. Legal Professional Privilege 10 An agency may refuse access if a document is an exempt document (FOI Act, ss 24, 25(1)(a)). The primary categories of exempt document are set out in Schedule 1 to the Act. Clause 10 of Schedule 1 provides: ' 10 Documents subject to legal professional privilege (1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. (2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document.' 11 As was noted in the 2001 Land and Environment Court case, Mr Franks feels strongly that the conduct of the Council towards him has involved an abuse of public office, and the documents sought in this case being documents connected with the Council actions taken against him have lost the benefit of the privilege for that reason. The law on legal professional privilege recognises that the privilege is lost in respect of documents that conceal a deliberate abuse of statutory power: Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 515; and see, recently, AWB Limited v Cole (No 5) [2006] FCA 1234 (Young J) at [210] ff. In particular, Mr Franks believes that he was improperly the subject of bankruptcy proceedings brought against him in relation to his non-payment of costs. He claims that they were initiated by Council officers acting contrary to the decision of the elected Council. The Council's position is that its conduct was proper, and that included in the exempt documents is material which vindicates its conduct. Point 3: Non-Receipt into Evidence of Appellant's Supreme Court Process 12 It is convenient to commence with point 3. The appellant has initiated Supreme Court proceedings against the Council seeking damages for abuse of power. The Tribunal did not allow him to tender into evidence the statement of claim in those proceedings. The appellant claims that he has been denied procedural fairness. 13 The appellant acknowledged before us that he had not prior to the date of hearing given any notice that he would be seeking to have the statement of claim entered into evidence. Our understanding of what occurred at hearing is based on the account given to us by the Council's counsel and Mr Franks' counsel. They advise that the Tribunal declined to receive the document at such a late stage, in particular, as it contained serious allegations against the Council, and no proofs in respect of those claims were available. They stood as mere allegations. 14 Preliminary Point: The Council submitted that the Appeal Panel must give leave before a point of law objection is considered in relation to an evidential ruling in the course of proceedings because it is interlocutory in nature. The Council's submission is that the matter raised is an 'evidential matter'. This is one of the meanings given to 'interlocutory function' by the ADT Act, s 24A(1)(e). This provision is to be read in conjunction with s 113(2A)-(2C), in particular s 113(2B) which provides: '… an appeal does not lie to an Appeal Panel of the Tribunal against an interlocutory decision of the Tribunal except by leave of the Appeal Panel.' 15 Mr Franks submitted that this was not necessary as the relevant provision in the present circumstances was the ordinary appeal provision (s 113) which allows points of law to be raised without leave. The point had been raised as part of a full appeal against the final decision of the Tribunal. In his submission, there was no need to obtain leave, relying on the High Court decision in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 483 per Gaudron, McHugh and Hayne JJ. The relevant passage is more qualified than Mr Franks contended. It is as follows (footnotes omitted): '…[A] party may challenge the correctness of the final judgment entered in a matter on the ground that some interlocutory decision was wrong. …[E]videntiary rulings provide the obvious example … . … The proposition that any interlocutory order can be challenged in an appeal against the final judgment is often stated in unqualified terms. The better view, however, is reflected in the formulation reflected in Spencer Bower, Turner and Handley [The Doctrine of Res Judicata, 3rd ed (1996) [170]] where it is said that 'on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result' (emphasis added). It is necessary to make the qualification, 'which affected the final result', at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice.' 16 These opinions are not, in our view, strictly in point. They are concerned with the way in which the leave discretion is to be exercised in the higher courts in relation to interlocutory appeals. The Court is not addressing a statutory appeals scheme of the kind found in the ADT Act. 17 It is desirable, at this point, to set out the whole of s 113 of the ADT Act: ' 113 Right to appeal against appealable decisions of the Tribunal (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. (2A) Despite subsections (1) and (2), an appeal does not lie to an Appeal Panel of the Tribunal against an interlocutory decision of the Tribunal except by leave of the Appeal Panel. (2B) For the purposes of determining whether to grant leave to appeal under subsection (2A), an Appeal Panel may be constituted by one presidential judicial member who is assigned by the President to make that determination. (2C) The provisions of subsection (2B): (a) have effect despite any other requirement of this Act or any other enactment relating to the constitution of an Appeal Panel for the exercise of its functions, and (b) do not prevent a differently constituted Appeal Panel from determining whether to grant leave to appeal under subsection (2A) if the Panel is duly constituted to exercise that function apart from subsection (2B). (3) An appeal under this Part must be made: (a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or (b) within such further time as the Appeal Panel may allow. (4) An appeal under this Part is to be made in the manner prescribed by the rules of the Tribunal.' 18 In our view the leave requirement applies equally to the bringing of interlocutory appeals when the proceedings below are not concluded; as well as to the bringing of an appeal on an interlocutory ruling as part of a wider appeal that includes an appeal against the final orders made in the proceedings below. 19 In our view the decision whether to grant leave to appeal an interlocutory ruling depends upon the justice of the particular case (and that means justice to all parties not just the appellant) (see Secretary to Department of Premier and Cabinet v Hulls [1999] VSCA 117); and, importantly, whether a different ruling on the interlocutory question is attended with sufficient doubt to warrant it being reconsidered: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9. There can be rulings as to evidence that prove fundamental to the outcome of proceedings. Leave should be granted readily to have them reagitated once the proceedings below have been completed. A different position might apply where it is sought to reagitate the ruling before the proceedings below have been completed. 20 Conclusion: In our view leave should be denied. The ruling was, in our view, clearly the appropriate one in the circumstances. 21 The purpose for trying to get in the statement of claim was to inform the Tribunal of the nature of the proceedings being brought by the appellant, and the nature of his allegations. 22 It is clear from a review of the written submissions made to the Tribunal, and allusions made to them in the Tribunal's reasons, that the Tribunal was well aware of the history of contention between the appellant and the Council including the bankruptcy proceedings. The inclusion of the statement of claim in the formal evidence would not, we think, have made any difference to the Tribunal's deliberations. It made allegations, but no evidence was furnished of abuse of process or like conduct. 23 There must be some evidence before a Tribunal should embark on the course of considering whether the ordinary privilege is lost by dint of abuse of office or similar egregious misconduct. The text of a statement of claim is not evidence of that kind. Points 1 and 2: The Scope of Legal Professional Privilege 24 Clause 10 is generally expressed, and no guidance is given as to the content of 'legal professional privilege'. At the time of its enactment the relevant principles were, substantially, the province of the common law. 25 Mr Franks considers that his position would be advantaged if the Council, initially, and the Tribunal, on review, had applied the law relating to legal professional privilege found in the Evidence Act 1995 (Evidence Act) at Part 3.10, Division 1 under the heading 'client legal privilege'. In his submission this is now the law on legal professional privilege. 26 The first two points of the appeal, and the grounds covered by them, go to this point. 27 The usual approach taken in the Tribunal in the many cases in which it has dealt with the legal professional privilege exemption has been to apply the common law principles without any close regard being given to any differences between it and the Evidence Act: see, for example Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135 at [67]; Cianfrano v Premier's Department [2004] NSWADT 255 at [29]-[35]. 28 Recently, an Appeal Panel decided that it was not open to have any regard to the Evidence Act. The common law principles must be applied: Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 at [12]. The FOI Act seeks to promote the maximum access to government documents consistent with the public interest. It would be an untoward situation, were an applicant able to demonstrate that a document would not have been protected had it been adduced in Court under the Evidence Act, but remained protected at common law. It is not apparent that Cianfrano raised any disparity of this kind. 29 Influential in the conclusion reached by the Appeal Panel are the views expressed in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 per Gleeson CJ, Gaudron and Gummow JJ on the relationship between the Evidence Act and the continuing common law. Most importantly, the Appeal Panel adopted the reasoning of the Full Court of the Federal Court holding that the common law applies when interpreting the equivalent exemption (s 42) of the Commonwealth Freedom of Information Act 1982: Commonwealth of Australia v Dutton (2000) 102 FCR 168 at 169; applied, Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 53 at [20]. 30 In our view no disparity that might work disfavourably to Mr Franks was demonstrated. Mr Franks initially saw two of the Act's provisions as advantaging him, ss 125(1)(a) and s 121(3). Counsel did not press the argument based on s 125(1)(a). He did press an argument based on s 121(3), which provides: ' 121 Loss of client legal privilege: generally … (3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.' 31 The submission is that any privileged documents that appertains to, or reveals, misconduct by the Council in bringing the bankruptcy proceedings should be disclosed - as to do otherwise would lead to documents that affected a 'right' of the appellant being concealed. 32 Section 121(3), read in isolation, is utterly instructive as to what it might cover. 33 The Supreme Court has recognised the possibility that a wide reading of the provision might reduce considerably the scope of the protection afforded to communications by the doctrine of legal professional privilege. It has indicated that the provision is not to be read in the way, but by reference to the historical context out of which it arises. The Court has taken the view that the provision seeks to do no more than deal by general words with certain types of situations long recognised as involving an exception to the privilege relating to communications affecting the actual rights of a person: Talbot v NRMA Ltd [2000] NSWSC 602 at [3]; R v P [2001] NSWCA 473 at [41] per Hodgson JA. 34 This approach is consistent with the commentary in the leading text, Odgers, Uniform Evidence Law, 7th ed. 2006 at [1.3.10920], stating the provision should be interpreted 'narrowly', with examples that include the exercise of an option, acts of bankruptcy, or conduct amounting to an election. So the provision has been read, in effect, as not varying the common law iteration. 35 In our view there is nothing about this case which remotely approximates the kind of 'rights' seen as giving some protection by an exception of the kind found in s 121(3). The case illustrations all deal with pre-existing established rights, the existence of which is relevant to the just determination of the matter before the court. Point 4: Adequacy of Reasons for Decision 36 We accept the basic statements of law relied upon by the appellant. The Tribunal has a duty to give adequate reasons for its decision: ADT Act, s 89. 37 There is abundant case-law on what is required by way of adequate reasons, the leading authority in New South Wales being Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70. The Appeal Panel has frequently referred to the relevant principles: see, for example, Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8; Minister for Community Services v CE (No.1) (CSD) [2002] NSWADTAP 7; and, recently, Commissioner for Fair Trading, Office of Fair Trading v Cromwell's Auctioneers & Appraisals Pty Limited (GD) [2005] NSWADTAP 25. Mr Franks also referred to North Sydney Council v Lygon (1995) 87 LGERA 435 at 442 per Kirby ACJ; Mifsud v Campbell (1991) 21 NSWLR 725 at 728; and Ainger v Coffs Harbour City Council [2005] NSWCA 424 per McColl JA at [47]. 38 The observations of Mahony JA in an earlier case, Housing Commission of New South Wales v Tatmar Pastoral Co [1983] 3 NSWLR 378 at 386 have often been noted, where his Honour said: '[T]he decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.' 39 The appellant refers to the reasons for decision at [22] to [25] as being inadequate: '22 Clause 10 legal professional privilege. The first of the three grounds for the Council's claim that specified documents are exempt is that they are confidential correspondence between the Council and its lawyers where the dominant purpose of the communication was the provision of legal advice to the Council. The specified documents are A5, A7, A8, A10, B2, C1 - C6, C10, C14, D2 - D4, D6, D9, D16, D18 - D19, D21, E1, E3 - E5, F1 - F4, F6, F10 - F14, F18 - F22, F24, G1, G3 - G7, H1, I1 - I6, I8, J1 - J11, L1 - L6, L10 - L11, O9 - O10. I have reviewed the documents and am satisfied that the letters, faxes and memos constitute confidential correspondence between the Council and its lawyers where the dominant purpose of the communication was the obtaining or receiving of legal advice, in many instances in relation to pending or contemplated legal proceedings. I note that access to the annexures to document F24 has been granted. 23 The second of the three grounds for the Council's claim that specified documents are exempt is that they record confidential communications between the Council's lawyers, its corporate lawyer and the Council (as client) where the dominant purpose of the communication was the provision of legal advice to the Council. The specified documents are A1 - A4, A6, A9, B1, C7, C9, C11 - C13, D5, D7 - D8, D10 - D15, D17, D20, E2, E6, F7 - F9, F15 - F17, G2, H2, I7, I9, K1 - K7, L7 - L9, M1 - M10, N1 - N12, and O1 - O8. I have reviewed the documents and am satisfied that these memos, reports, minutes, faxes, emails and file notes record confidential communications between the Council's lawyers, its corporate lawyer and the Council where the dominant purpose of the communication was to enable the legal adviser to give, or the Council to receive, legal advice. Some of the documents also attached privileged correspondence between the Council and its lawyers. Again, in many instances, the legal advice was to be used in relation to pending or contemplated legal proceedings. I note that access to a number of the documents has been granted with the exempt material deleted, for example, documents M1 to M10. Those documents to which partial access has been granted are identified in the Table attached to the Council's letter dated 1 November 2005, and copies of these documents with deletions have been provided to the Tribunal in a separate volume. My review indicates that the partial access granted is appropriate. 24 The last of the three grounds for the Council's claim that specified documents are exempt is in relation to documents C8 and F5. The Council claims these documents are confidential letters from engineering experts engaged by the Council and the Council's lawyers, where the dominant purpose of the communication was to be used in relation to legal proceedings in the Land and Environment Court. Both documents are letters from consulting engineers to the Council's solicitors in relation to Land and Environment Court proceedings against Mr Franks and contain engineering advice. In my view, they should be categorised as falling within paragraph (d) of Higgins JM's summary of the principles of legal professional privilege set out in paragraph 8 above, being advice of a non-legal character connected with the giving of legal advice in relation to contemplated or pending litigation. 25 There is no evidence before the Tribunal to suggest that the privilege claimed in respect of the above documents has been waived. I am satisfied the documents reviewed should be categorised as exempt documents as claimed by the Council.' 40 A difficulty confronts the Tribunal in FOI cases when giving public reasons - it must, in doing so, reveal any exempt matter. Section 55 of the FOI Act provides: ' 55 Procedure for dealing with exempt matter In determining a review application, the Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and (b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative.' 41 Nonetheless the duty to give adequate reasons remains, and that may, on occasions, mean that a fuller, confidential part may have to be included in the reasons, though not made available to the applicant party: see further, Ferns v Commissioner for Corrective Services [2006] NSWADTAP 50 at [16]. 42 Despite the abundant case-law, what amounts to a failure to give adequate reasons is not easily specified. Here the Tribunal identified specifically each of the documents falling into the various categories of legal professional privilege. 43 Mr Franks' criticism is that it approached the task on a global basis, rather than a document-by-document basis. In FOI cases the document-by-document basis is to be preferred: see, for example, Wilson v Department of Education (unreptd, Smyth DCJ, 21 December 1989), extract set out in Robinson (ed) New South Wales Administrative Law at [32.3850]. Smyth J emphasised in that case (involving the assessment of the public interest in connection with the internal working documents exemption) the need for each document to be given separate consideration, and not addressed as a 'class' of documents. To similar effect, see Hamilton v Environment Protection Authority (unreptd, Ainslie-Wallace DCJ, 5 August 1998). 44 In this case the exemption under notice (legal professional privilege) does not have the special discretionary factors that are found in many of the other exemptions. For example cl 6 (the personal affairs exemption) requires a judgement about the 'unreasonableness' of disclosure once the document is found to belong to the primary category of a document containing information about personal affairs. A similar process is required in dealing, for example, with cl 7 (the business affairs exemption). Once the document is found to belong to the primary category (document containing 'business affairs' information - see (1)(c)), then a further evaluation is required (for example, whether disclosure would result in a 'substantial adverse effect). Where this type of analysis is required, a document-by-document approach should be observed. Many documents may fall into the primary category, but different results may flow as between otherwise similar documents as the discretionary component of the test is brought to bear. This is particularly so where there is a further factor requiring the decision-maker to assess whether disclosure would be 'contrary to the public interest', as is seen in, for example, cl 9 (internal working documents) or cl 15 (State financial and property interests). 45 It is less necessary, we consider, to engage in a document-by-document approach, though still desirable, if all that the exemption requires is the placement of a document in a category, and there is no additional discretionary test to be applied. This is the position that applies in relation to, for example, the Cabinet documents exemption (cl 1) and the exemption in issue, the legal professional privilege exemption (cl 10). 46 In these instances, it may be acceptable, we think, for the Tribunal to summarise its conclusions when determining whether documents fall into a category, doing so in a more grouped way. Reasons may be adequate even though a document-by-document approach has not been admitted, if the reasons are presented with sufficient clarity, and the evidence corroborates that the documents are like documents, and fall into the category. The relevant paragraphs of the Tribunal's reasons in this case follow: '22 Clause 10 legal professional privilege. The first of the three grounds for the Council's claim that specified documents are exempt is that they are confidential correspondence between the Council and its lawyers where the dominant purpose of the communication was the provision of legal advice to the Council. The specified documents are A5, A7, A8, A10, B2, C1 - C6, C10, C14, D2 - D4, D6, D9, D16, D18 - D19, D21, E1, E3 - E5, F1 - F4, F6, F10 - F14, F18 - F22, F24, G1, G3 - G7, H1, I1 - I6, I8, J1 - J11, L1 - L6, L10 - L11, O9 - O10. I have reviewed the documents and am satisfied that the letters, faxes and memos constitute confidential correspondence between the Council and its lawyers where the dominant purpose of the communication was the obtaining or receiving of legal advice, in many instances in relation to pending or contemplated legal proceedings. I note that access to the annexures to document F24 has been granted. 23 The second of the three grounds for the Council's claim that specified documents are exempt is that they record confidential communications between the Council's lawyers, its corporate lawyer and the Council (as client) where the dominant purpose of the communication was the provision of legal advice to the Council. The specified documents are A1 - A4, A6, A9, B1, C7, C9, C11 - C13, D5, D7 - D8, D10 - D15, D17, D20, E2, E6, F7 - F9, F15 - F17, G2, H2, I7, I9, K1 - K7, L7 - L9, M1 - M10, N1 - N12, and O1 - O8. I have reviewed the documents and am satisfied that these memos, reports, minutes, faxes, emails and file notes record confidential communications between the Council's lawyers, its corporate lawyer and the Council where the dominant purpose of the communication was to enable the legal adviser to give, or the Council to receive, legal advice. Some of the documents also attached privileged correspondence between the Council and its lawyers. Again, in many instances, the legal advice was to be used in relation to pending or contemplated legal proceedings. I note that access to a number of the documents has been granted with the exempt material deleted, for example, documents M1 to M10. Those documents to which partial access has been granted are identified in the Table attached to the Council's letter dated 1 November 2005, and copies of these documents with deletions have been provided to the Tribunal in a separate volume. My review indicates that the partial access granted is appropriate. 24 The last of the three grounds for the Council's claim that specified documents are exempt is in relation to documents C8 and F5. The Council claims these documents are confidential letters from engineering experts engaged by the Council and the Council's lawyers, where the dominant purpose of the communication was to be used in relation to legal proceedings in the Land and Environment Court. Both documents are letters from consulting engineers to the Council's solicitors in relation to Land and Environment Court proceedings against Mr Franks and contain engineering advice. In my view, they should be categorised as falling within paragraph (d) of Higgins JM's summary of the principles of legal professional privilege set out in paragraph 8 above, being advice of a non-legal character connected with the giving of legal advice in relation to contemplated or pending litigation. 25 There is no evidence before the Tribunal to suggest that the privilege claimed in respect of the above documents has been waived. I am satisfied the documents reviewed should be categorised as exempt documents as claimed by the Council.' 47 In our view, these reasons are adequate, given that the task required of the Tribunal in dealing with the legal professional privilege exemption is one only of categorisation. 48 One complaint of the appellant was that little was said in the reasons on his s 121(3) Evidence Act point. While, for the reasons given, it was only necessary for the Tribunal to address the matter by reference to the common law principles, we do think it was conscious of the argument. As Ms Pritchard for the Council pointed out, the Tribunal was aware of the submission - see, for example, [9]. In light of its conclusion that the Evidence Act was not applicable (which we have upheld), there was no need to explore this point at length. 49 Mr Franks criticised this, the last paragraph of the reasons, para [26]: '26 Although the Council has denied Mr Franks access to a relatively large number of documents, it is apparent that he and the Council have been in dispute over a number of years and that there have been various legal proceedings between the parties. My review indicates that the Council has acted appropriately and in accordance with the FOI Act in respect of Mr Frank's application for access to documents. The determination dated 1 November 2005 is therefore affirmed.' 50 Mr Franks noted that the Tribunal gave no reasons for the conclusion that the Council had acted 'appropriately'. We think all the Tribunal was trying to say was that, in light of its analysis of the matter, the Council had acted 'appropriately'. It was not making any observation on the general state of the relationship between Mr Franks and the Council, or on the matters that are the subject of his Supreme Court action. 51 Mr Franks submitted that the decision was affected by an irrelevant consideration, namely, the reference to the parties having 'been in dispute for a number of years and that there have been various legal proceedings between the parties'. It will be seen that some of this history is given in our decision. It is done simply to provide a context for the application and to provide some understanding of the background to Mr Franks' claims in relation to abuse of public office. 52 The Tribunal's references to these matters, as in this decision, do not form part of the reasoning process in relation to the correctness or otherwise of the Council's determination of the access application. Order Appeal dismissed.

Franks v Warringah Council

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