Lipscombe v Blue Mountains City Council

NCAT Administrative and Equal Opportunity|2019-04-03

Introduction

This is an application for administrative review of a decision of the Blue Mountains City Council ("the Council" or "the Respondent") concerning access to government information. The application is brought under the Government Information (Public Access) Act 2009 ("the GIPA Act").

Background

Mr Lipscombe ("the Applicant") applied under the GIPA Act for access to information held by the Council. The information relates to independent investigations into asbestos management and risk issues involving the Council. In his access application the Applicant requested: All reports, either interim or final, including all attachments, annexures and/or addendums, that arise out of any inquiry or similar process conducted for Council by Michael Tooma, or by the firm Clyde & Co. from 1 November 2017 up to and including the date of this request.
Two reports that were identified as falling within the scope of the access application are the subject of these proceedings. Those reports are identified as: 1. "Report 1 - Asbestos Management at Lawson Carpark, Lawson Mechanics Institute and Lawson Depot". This report is referred to as Interim Report 1 or IR1. 2. "Report 2 - Identification of Asbestos Contaminated Material at the Former Blackheath Tip and access to that site once asbestos was known" This report is referred to as Interim Report 2 or IR2.

Jurisdiction

The decision under review is a reviewable decision in accordance with section 80 of the GIPA Act. The Tribunal's jurisdiction is enlivened by section 100 of the GIPA Act.

The Legislative Provisions

The GIPA Act provides for the informal and formal release of government information. The Act provides various mechanisms for the operation of these provisions as well as a series of guiding principles / objects.
The objects of the GIPA Act are as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. The following outline of the provisions is provided at paragraphs [5] - [10]: 5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure. 6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies. 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". 10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
The GIPA Act also provides a number of provisions which allow an agency to refuse to provide access not on the basis of the content of the information, but on general administrative provisions. In these proceedings, the Council contends that the withheld information is subject to a claim of legal professional privilege. Clause 5 of Schedule 1 to 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. (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.
Unlike information for which public interest considerations against disclosure are claimed, material for which a conclusive presumption is maintained is not assessed or weighted for consideration of release, but rather assessed as to whether it meets the definition of the conclusive presumption descriptor. If such information is assessed as meeting that description then no further assessment or weighting occurs and the material is withheld at that point.
Section 97 of the GIPA Act places the onus of establishing the claim for legal professional privilege ("LPP") on the Agency.
The relevant test under the GIPA Act for the determining client legal privilege and waiver of that privilege is the statutory formulation under the Evidence Act 1995. This approach has been confirmed by the Tribunal in a number of cases. In CHU Underwriting Pty Ltd v Hunter Water Corporation [2018] NSWCATAD 273, Senior Member McAteer provided the following discussion: Principles of Legal Professional Privilege 23 The concept of LPP has been well established as a legal concept over many years. The case of Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 like many cases establishes the requisite LPP requirements in the GIPA Act context. At [54] the Tribunal observed: 54. The general provisions relating to the existence of legal professional privilege are as follows. The material must be: In the context of a client and lawyer relationship, That there is a confidential nature to the communication or the document(s), The communication or the documents was brought into existence for the dominant purpose of either: (a) assisting the client in obtaining, or the lawyer to give or provide legal advice or services, (b) for use in either existing of proposed / contemplated proceedings / litigation. 55. These provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995 (NSW). 24 ... 25 The question for the Tribunal is whether these documents were brought into existence for the dominant purpose of providing legal advice to a client or the client being provided with professional legal services. 26 Sections 118 and 119 of the Evidence Act 1995 provide: 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. 27 ... Reference was made to the provisions of s 177 of the Evidence Act 1995 which defines the terms 'confidential communication', 'confidential documents', 'client' and 'lawyer'. 28 The respondent referred to the meaning of the words 'dominant purpose' ... In Battin v University of New England [2013] NSWADT 73 at [35] the ADT observed: A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].
Legal Professional Privilege is not established by the mere assertion that the privilege applies to a particular communication. Simply to label a document as being "prepared for legal advice" or as "privileged" or as being "without prejudice" is of itself insufficient to justify the privilege. It is necessary to consider objectively whether the reports were privileged. This takes account of the substance of the matter, having regard to the content, context and evidence as well as the form of the documents.
The party claiming that a document is privileged must show the dominant purpose for which the document came into existence. The Council contends that the documents constitute confidential communications between the Council and its legal representative. The Council's claim is made in respect of all of the withheld information.
The Applicant contends that if the claimed privilege did exist, the Council has waived that privilege. He contends that one of the indicia of being inconsistent with the maintenance of the privilege is providing copies of documents over which you assert privilege, without compulsion of law, to another person whose interests are counter posed to your own. Copies of reports were given to SafeWork New South Wales ("SafeWork") which was in the position of potentially launching prosecutions against the Council. He contends that notwithstanding that the reports were given in confidence, they were given in a manner that was inconsistent with the maintenance of the privilege.
The statement of facts agreed between the parties addressed the background to the proceedings.
It is not in dispute that the firm of McPhee Kelshaw was retained generally by the Council as one of its external solicitors. After an issue arose in relation to asbestos, McPhee Kelshaw provided advice to the Council and the Council instructed McPhee Kelshaw to engage suitably qualified investigators to carry out an investigation. In late 2017 McPhee Kelshaw selected Clyde & Co. as an investigator and made a recommendation to the Council.
After the Council accepted its recommendation, McPhee Kelshaw retained Clyde & Co. to conduct an investigation and prepare reports into the asbestos issues. The Council contends that it had no contractual relationship with Clyde & Co. and that McPhee Kelshaw engaged Clyde & Co. in its role as the solicitor for the Council. The two reports to which the Applicant seeks access were written by Clyde & Co. The Council contends that the reports were written for McPhee Kelshaw.
Mr Singleton, counsel for the Council, submitted that if Clyde & Co. had a contract with the Council, such that it could sue the Council for its fees, then the Council could give it an instruction to publish the reports. As such, the Council could affect its rights. However, if Clyde & Co. had no contract with the Council but had a contract with McPhee Kelshaw then only McPhee Kelshaw can give that instruction.
In contrast, the Applicant contends that, in retaining Clyde & Co., McPhee Kelshaw was merely acting as an agent, on behalf of the Council. He says that the Council was the client and that McPhee Kelshaw was not the client.
The Applicant also contends that the dominant purpose for which the reports were written was not for the provision of legal advice or services but rather, the reports were written more for public relations purposes.
Mr Singleton submitted that the issue of whether McPhee Kelshaw was acting as an agent or was the contracting party turns on communications between Mr Tooma and Mr Cork. Those communications have been provided to the Tribunal and Mr Singleton submitted that they are privileged.

The material before the Tribunal

The Council has provided a copy of the withheld reports to the Tribunal on a confidential basis. That material has not been disclosed to the Applicant or the public. For completeness the Council has also provided several volumes of other documents which it says are related to the issue before the Tribunal. Section 64(d) of the Civil and Administrative Tribunal Act 2013 applies to that material. Section 64(d) provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - … (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
Further, section 107 (1) 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.
During the hearing I determined to deal with the consideration of some issues by way of confidential session. The Applicant and the public were excluded from that aspect of the hearing.
The Tribunal also has before it statements from Mr Trevor Cork, a principal in McPhee Kelshaw. Mr Cork appeared, gave evidence and was cross-examined.
Evidence was also given by Mr Mark Greenhill, the Council's Mayor and Mr Michael Tooma of Clyde & Co.
Mr Cork provided a further statement and was recalled for further cross-examination following the evidence of Mr Tooma.
Ms Kerry Brown, a councillor with the Council attended the hearing but her evidence was not pressed.
Each of the parties has provided written submissions and each has also made oral submissions.

Mr Mark Greenhill

Mr Greenhill's evidence is that he did not meet with, or speak with any of the authors of the reports or any of the people conducting the Clyde & Co. investigation. He did not request any particular conclusion from the Clyde & Co. investigation. He and the Council's general manager were provided with both unredacted and redacted versions of the reports. He didn't retain the unredacted versions but redacted versions were both retained and supplied to all councillors. Mr Greenhill said that he is also aware that the reports were provided to SafeWork.

Mr Michael Tooma

Mr Tooma is a solicitor and managing partner of the firm Clyde & Co. He was involved in the preparation of investigation reports for the Council in relation to the Council's management of asbestos. His evidence is that he was involved in authoring two reports - IR1 and the last report. Ms Alena Titterton was the author of IR2, independently of Mr Tooma.
Mr Tooma said that he was the author of a document titled "Independent investigation into asbestos management of Blue Mountains City Council action plan (draft for discussion)". He did not give a copy of the report to anyone other than McPhee Kelshaw. However, he did disclose part of the report's contents to SafeWork and the United Services Union ("the USU").
Mr Tooma said that he was engaged by Mr Cork, of McPhee Kelshaw. When McPhee Kelshaw contacted him he was told that McPhee Kelshaw was acting for the Council. He understood at all relevant times that McPhee Kelshaw was Clyde & Co.'s client. His instructions came from McPhee Kelshaw and he had no dealings at all with the Council in relation to the investigation or the reports.
Mr Tooma said that up until 15 December 2017 he understood that he had a duty of confidentiality to McPhee Kelshaw. However, from that time he understood that the investigation became an open investigation. He understood that to mean that he had been authorised to make the reports public.
It was his intention that he would give his reports to McPhee Kelshaw and he expected that McPhee Kelshaw would provide them to the Council. His expectation was that the Council would make the reports public. He never published the reports himself but he also understood that he had been authorised to do so. He understood that authorisation to have come from McPhee Kelshaw.
His evidence is that he was given instructions in relation to briefing third parties by McPhee Kelshaw. He was instructed to conduct the investigation in consultation with those parties. He understood that he was authorised to discuss with them what he was uncovering and how he was doing it.
His evidence is that he was quite open in his investigation with various people who spoke to him and at various stages he would communicate the state of his understanding. He was operating under an assumption that it was a public investigation and that he was authorised to disclose the content of the investigation.

Mr Tooma's dealing with the USU

His evidence is that the purpose of his dealing with the USU was to keep them apprised of the progress of the investigation and to give them a degree of assurance about the integrity of the process. He said that the USU had the confidence of certain employees who were key witnesses and who were also USU members. He considered that it was very important to gain the confidence of the USU, particularly in terms of gaining access to relevant information for the purpose of the investigation. He said that he was very open with the USU in relation to what he was finding and what progress he had made in the investigation. He said that this approach was in accordance with his instructions.
He considered that the method that he adopted facilitated the investigation itself and in part allowed the investigation to discover more than might have been achieved otherwise. He gained access to certain employees who were reluctant to come forward; employees who had felt that previous investigations had not been fully independent. He felt that it was important to gain access to particular employees to gain a better understanding of their concerns and what the issues were.
He met with the USU in relation to IR1. He had the report with him and he briefed them on what was in the report. He used the report in the briefing to refresh his own memory as to his findings and to use as an aide memoire to ensure accuracy in relation to the discussions.
Interim Report 1 has a diagram that summarises the position. It is a method of cause analysis called a fishbone diagram. He does not have a specific recollection of referring to the fishbone diagram but he accepted that it would be natural to him to have referred to some aspects of it. He said that that would be how he would communicate a dense report like IR1. He expects that he would have held the document in front of himself and pointed to the fishbone diagram during the discussions.
He did not read out the report. He was not telling the meeting what was in the report but he was telling them facts and information that he had uncovered and this coincided with what was in the report. His purpose was to give them the facts; to give them confidence that he was conducting an open and thorough investigation; and to inform them that certain facts were uncovered as part of the investigation.
He had other meetings with the USU in relation to his progress with the investigation. The intention was that he would meet with them on a monthly basis to give them confidence that he was conducting the investigation in the open manner in which he was instructed and had been communicated to the USU. He had a similar intention in regard to SafeWork.
He said that Ms Titterton met with the USU in relation to Interim Report 2.

Mr Tooma's dealing with SafeWork

Mr Tooma said that the objective of his dealings with SafeWork was to give it sufficient confidence to delay its own investigation so that a SafeWork investigation was not taking place at the same time as the Clyde & Co. investigation. Those communications were mostly by telephone. The exception was an initial meeting which took place with Mr Bultitude prior to the investigation commencing. Mr Tooma said that in the subsequent telephone communications he spoke in general terms about the findings in relation to those reports with which he was involved. His dealings with SafeWork were briefer than those with the USU.

The open investigation

Mr Tooma said that on about 15 December 2017 he received a communication from Mr Cork. The effect of that communication was that he would be conducting a public investigation; that it was to be done in consultation with SafeWork, the USU and other stakeholders; and that he was authorised to publicly release the reports. He understood that to mean that it was not to be a confidential investigation as it had been prior to 15 December 2017. He understood that consultation was involved and that the investigation would be undertaken in public.
Mr Tooma said that this position arose because of significant backlash from various stakeholders, including the media, in relation to the notion that the Clyde & Co. investigation would be done confidentially. The decision was made that the investigation was to be done in an open manner and ultimately whatever was uncovered would be revealed and published and released. He understood that that decision was taken to gain the confidence of various stakeholders, including the workforce generally and the local council residents, but mostly to gain the confidence of SafeWork and the USU.
From 15 December 2017 onwards he understood that he was not conducting a confidential investigation. He understood that he was preparing something that was more open and he treated the discussions with both the stakeholders and the employees who were interviewed in that manner. He did so to give them confidence that what he was doing was transparent.
Mr Tooma said that he understood that conducting a public investigation meant that the public knew that an investigation was being conducted. It was not a secret. However, it did not mean that every time he conducted an interview with a witness he would publish the content of the interview. He did not adopt that approach for reasons unrelated to confidentiality. He did not regard that type of disclosure as the proper course of conducting the inquiry because it could result in contamination of the evidence of other witnesses.
He operated on the understanding that he was authorised to publish the information that he obtained if he saw some benefit or value in doing so. However, he did not see a benefit or value in publishing the information and therefore he never released it. For the same reason, he didn't release the reports. He regarded the Council to be the appropriate person to decide whether or not the reports were released.
Mr Tooma said that he received a written instruction that he was authorised to release the reports in a letter that he received on or about 15 December 2017. He was informed that the Council had passed a resolution authorising publication. He was told that he could consult with the USU and SafeWork regarding the progress of the investigation. He understood that he was not subject to any of the constraints that might attach to a confidential investigation. He said that neither his instructions nor his understanding has changed. Nevertheless, he has not released the reports.
His understanding was that from 15 December 2017 onwards it was no longer a privileged investigation. He had a discussion with Mr Cork soon after receiving the communication about the council resolution authorising publication. The discussion was in relation to documents that had been provided to him which on their face looked to be privileged material. The documents were advices in relation to leases and were historical in nature. Given the changed character and nature of his investigation, he sought instructions from Mr Cork about what McPhee Kelshaw wished him to do in relation to that material. He said that Mr Cork obtained instructions that the material would remain as part of the bundle of material that he had been given for the purposes of the investigation.
Mr Tooma said that he was having daily meetings with Mr Cork and multiple telephone conversations. He referred to a later conversation where Mr Cork raised the question of whether it was possible to turn the investigation back into a privileged investigation. He would characterise Mr Cork's suggestion as half serious.
He said that, to the best of his recollection, that conversation would have taken place sometime in January 2018. The conversation took place in Mr Tooma's office and Ms Titterton was there. Mr Tooma said that he told Mr Cork that it would not be an appropriate course given how far they had gone with the investigation and the undertakings that he had given to various stakeholders. He regarded that to be an undesirable course and that if it was taken he would need to cease being involved in the investigation.
Based on his understanding of his instructions, he had given undertakings to various people that he was conducting an open investigation; that they would receive a copy of reports in due course; and that he would be briefing them along the way.
Mr Tooma said that Mr Cork was meticulous in confirming communications in writing and he would be familiar with the volume of material that relates to those communications. However, he said that the conversation regarding the possibility of turning the investigation back into a privilege investigation was not recorded in writing nor confirmed.

Mr Trevor Cork

Mr Cork's evidence is that he engaged the services of Clyde & Co. in November 2017. He did so in response to instructions received from the Council. Those instructions incorporated the terms of reference that were approved by resolution of the Council's governing body on 14 November 2017. Subsequent terms of reference were adopted by the Council in December 2017 and became the final terms of reference. That resolution was communicated to Clyde & Co.

McPhee Kelshaw's engagement of Clyde & Co.

Mr Cork's evidence is that McPhee Kelshaw retained Clyde & Co. for the dominant, if not sole, purpose of providing legal advice to the Council and legal services to the Council in respect of anticipated litigation.
In addition to the terms of reference McPhee Kelshaw provided Clyde & Co. with Mr Cork's instruction and an enormous volume of other material. The letter of engagement has been provided to the Tribunal on a confidential basis.
Mr Cork's evidence is that Clyde & Co.'s accounts for professional fees were addressed to McPhee Kelshaw and that McPhee Kelshaw was responsible for the payment of those fees. It sought reimbursement from the Council; however there was no agreement that the Council would pay those fees.

The 15 December 2017 Council resolution

Mr Cork stated that he was present at a meeting of the Council on 15 December 2017 when a resolution was passed to adopt a set of recommendations the third of which was: "That the Council authorises Mr Tooma to conduct his investigation in consultation with Safe Work NSW, the United Services Union (USU) and all other relevant stakeholders and to publicly release his report and to make his report available to the Minister for Local Government, Safe Work NSW and the USU."
A period of uncertainty followed the 15 December 2017 resolution. Mr Cork gave evidence in regard to that period and referred to the extreme pressure and long work hours that followed. In particular it was necessary to determine an approach to the Clyde & Co. investigation that took account of the Council resolution. That involved numerous meetings and conversations with both the Council and Mr Tooma.
In paragraph [23] of his statement dated 19 November 2019 Mr Cork stated: 23. Any inconsistency and uncertainty in the days and weeks following 15 December 2017 notwithstanding, by mid-January it was clear that McPhee Kelshaw's engagement of Clyde & Co. involved the following: (1) There would be only one version of each interim report and of the final report prepared by Clyde & Co. (not the at-one-point suggested two versions, one confidential and the other not). (2) Mr Tooma and Clyde & Co. would, when finalising their reports, where the report concerned would make adverse findings against a named individual, make a copy of the relevant part of the report available to the individual and give him or her an opportunity to respond before the report was finalised. (3) Each report would be submitted to McPhee Kelshaw for the purpose of McPhee Kelshaw's providing legal advice and litigation services to the Council, and thereafter by McPhee Kelshaw to the Council. (4) Each report would remain confidential until after it had been reviewed. (5) Mr Tooma and Clyde & Co. would make available to McPhee Kelshaw, with the confidential version of the report, a redacted version of the report, deleting the names of individuals (where possible). The redacted report would also delete references to the finding of fault in relation to the named individuals. (6) Each report would be made available to the elected Councillors, the Minister, the Acting Chief Executive of the OLG, SafeWork NSW and the USU. (7) The extent to which each report would be made public (or, correspondingly, the extent to which the reports would be redacted prior to publication) would be determined by the Council after receipt of the report (and, no doubt, taking into account the redacted version prepared by Clyde & Co.). (8) Accordingly, when Clyde & Co. came to prepare each report it was subject to an obligation to keep the report confidential and not provide it to anyone except McPhee Kelshaw.
Mr Cork stated that he was given access to a copy of IR1 from Clyde & Co. on 16 February 2018. In relation to the reports he stated: 36. The content of Interim Report 1 included material that put the document within the scope of what had at one stage been contemplated as a separate, confidential report and was later contemplated would require redaction prior to publication. In particular, it contained material that was adverse to and defamatory of certain persons. Furthermore, persons against whom adverse findings had been made had not been afforded an opportunity to respond to the adverse reflections in question. Therefore, McPhee Kelshaw took steps to invite those persons to respond to the parts of the report that were relevant to each of them. 37. Interim Report 2 was received on 28 February 2018 (by the same method of giving access as occurred in respect of Interim Report 1 ... I understood at the time and still understand that Ms Titterton was its principal author. 38. The content of Interim Report 2 included material that put the document within the scope of what had at one stage been contemplated as a separate, confidential report and was later contemplated would require redaction prior to publication. In particular, it contained material that was adverse to and defamatory of certain persons. 39. Thereafter, only one more interim report was received from Clyde & Co., not the foreshadowed further ten interim reports. The final report was received on 31 March 2018. 40. No redacted version of Interim Report 1 or Interim Report 2 (or, indeed, Interim Report 3 or the Final Report) was received from Clyde & Co.

McPhee Kelshaw's dealing with the Reports

Mr Cork's evidence is that he provided a copy of each of the reports to the Council's general manager and that he may have also copied the text of the reports to the Mayor. He said that some Council staff members have seen the reports. However, the reports have not been circulated widely within the Council and have only been viewed by a very tight group. In most cases, they only saw the redacted version of IR1 and IR2.
Mr Cork said that he gave advice to the Council that it was obliged to produce the reports to the Minister for Local Government ("the Minister").
A copy of IR1 and IR2 was provided to the Minister in accordance with a performance improvement order that the Minister had served on the Council. The copies were sent to the Minister through the Director, Legal of the Office of Local Government ("the OLG") with a covering letter noting that the Council did not waive its privilege or the confidentiality of the material and noting that the material was defamatory. The legal section of the OLG acknowledged those issues. This acceptance by the OLG was demonstrated by the fact that it subsequently declined a request to produce the material without appropriate permission or authority.
Copies of reports IR1 and IR2 were also provided to the Ombudsman under compulsion of law. The Council contends that no waiver of privilege arises as a result of the Council providing the reports to the Ombudsman.
A notice served on the Council by the Environmental Protection Authority ("the EPA") required production of certain documents and copies of reports IR1 and IR2 were provided. Mr Cork provided the copies of the reports on the understanding that they were privileged and that they were confidential. Mr Cork said that the EPA accepted that the reports were privileged; that they were confidential and that they were defamatory and agreed that the reports would be closely held and not released.
A copy of IR1 and IR2 was also made available to Mr Rick Bultitude of SafeWork, on the understanding that the reports were privileged and that they were confidential.
Mr Cork agreed that at the time he provided the reports to Mr Bultitude, he considered that it was possible that SafeWork might launch prosecutions against the Council or its officers.
Mr Cork also said that he met with Mr Daniel Papps of the United Services Union ("the USU") in relation to IR1. As a union official Mr Papps had a statutory role with responsibilities under the Work Health and Safety Act 2011. Mr Cork reviewed a redacted version of IR1 with Mr Papps but anything that could identify a particular individual, either actually or constructively was redacted from the copy that was reviewed with Mr Papps.

Mr Cork response to Mr Tooma's evidence regarding the open investigation

The Council sought and was granted an adjournment in light of Mr Tooma's evidence so that instructions and further evidence could be obtained. Mr Cork provided a further statement in response. The Applicant was provided with a redacted version of the statement and an unredacted version was filed with the Tribunal on a confidential basis. The unredacted version of Mr Cork's further statement annexed correspondence between McPhee Kelshaw and Clyde & Co. and between McPhee Kelshaw and the Council that was not provided to the Applicant.
Mr Cork was recalled and gave further evidence - partly confidential and part in open session.
Mr Cork gave evidence in the absence of the Applicant. In that session he was taken through the unredacted version of his further statement in response and its annexures. On the basis of Mr Cork's evidence I was satisfied that the redacted information is privileged material. I am not satisfied that the privilege has been waived through the course of these proceedings. I determined that it should be admitted into evidence pursuant to section 107 of the GIPA Act. I determined that the Applicant was not to be provided with the unredacted version of Mr Cork's further statement and annexures.
In the open version of Mr Cork's further statement he stated his understanding of the terms of McPhee Kelshaw's engagement of Clyde & Co. following the Council resolution on 15 December 2017. This is set out above.
Under cross-examination Mr Cork agreed that he gave Mr Tooma instructions following the Council resolution on 15 December 2017. He had received instructions from the Council and a plethora of issues arose for discussion in regard to how the Council resolution could be made to work. However, he did not regard this as a change to the instructions that had been given to Clyde & Co. He did not agree with Mr Tooma's understanding that from December 15 2017 he was no longer under an obligation of confidentiality.
Mr Cork stated that he did not recall a conversation with Mr Tooma in which the two discussed the possibility of turning Mr Tooma's investigation back into a privilege investigation. He agreed that he kept detailed records of meetings but had he has not found any record of such a conversation with Mr Tooma.
Mr Cork also stated that he had no recollection of a discussion with Mr Tooma which suggested that Mr Tooma had the liberty to release the documents that McPhee Kelshaw had made available to him. He said that thousands of documents were made available to allow Clyde & Co. to conduct the investigation. Mr Cork stated that he expected Mr Tooma to have regard to the documents that had been made available to him. However, to the extent that some of those documents may have been privileged, he expected that if Mr Tooma wished to make reference to that material he would raise the issue.

Submissions

Each of the parties has provided written and oral submissions.
As noted, the Applicant contends that if the reports were ever subject to legal privilege, then that privilege has been waived. In that regard he submits that to the extent that there is any inconsistency between Mr Tooma's evidence and the evidence of Mr Cork, Mr Tooma's evidence ought to be preferred.
The Applicant submits that Mr Tooma's was in the prime position to accurately understand the instructions of McPhee Kelshaw and his evidence is quite clear that he met with Mr Cork specifically in relation to what to do with privileged material, given the changed character of his investigation. He submits that the Tribunal ought to reject Mr Cork's evidence that he doesn't recall that meeting.
The Applicant submits that in regard to the issue of privilege, the relevant time is that when the reports were created. He says that, on the evidence, the reports were created over the course of several weeks and that this period included the time in which Mr Tooma was having conversations with Mr Cork about whether to take back certain privileged documents, and in which Mr Cork asked whether it was possible to return the Clyde & Co. investigation to being a privileged investigation.
The Applicant submits that there is clear and compelling evidence that the author of the reports considered that the person who requested the reports had waived privilege or had said that there would not be privilege in relation to the reports. He submits that Mr Tooma's evidence makes it clear that following the Council resolution on 15 December 2017 Mr Cork understood that the investigation would not attract legal privilege. If it didn't attract legal privilege then Clause 5 of Schedule 1 to the GIPA Act could not apply. In those circumstances, the Respondent could not have met its burden as to a claim of privilege.
Mr Singleton noted that there is evidence from both Mr Tooma and Mr Cork regarding Mr Cork's meticulous record keeping and his propensity for documenting each interaction in writing. The volumes of material that have been provided to the Tribunal support that view. The single exception to this approach to record keeping appears to relate to the conversation that Mr Tooma referred to regarding Mr Cork's query about whether it was possible to turn the Clyde & Co. investigation back into a privileged investigation. Mr Tooma and Mr Cork plainly have different recollections.
Mr Singleton submits that it is not necessary to choose between the two but, if it were necessary, there is no basis for preferring Mr Tooma. Mr Singleton submits that, to the extent that there are conflicting versions between Mr Tooma and Mr Cork, the Tribunal would prefer the version which best accords with the other circumstances - particularly the written record. He submitted that it is not surprising that a joking reference to something would not be file noted or remembered.
Mr Singleton agreed that in regard to the issue of privilege, the relevant time is when the reports were created. In that regard he submits that there is no question that these are February 2018 documents. The documents that are subject to privilege are the final versions and those were completed and submitted to Mr Cork in February 2018. There is no evidence that there were earlier drafts. Mr Cork's evidence is that he was given access to a copy of IR1 from Clyde & Co. on 16 February 2018. IR2 was received on 28 February 2018
Mr Singleton submits that the question for the Tribunal is whether or not, in February 2018 when the documents were written and submitted to McPhee Kelshaw, there was a duty of confidentiality. Mr Tooma disavowed the suggestion that the Council was the client of Clyde & Co. The Council has consistently relied on the confidentiality obligations of McPhee Kelshaw. There is no suggestion at all that McPhee Kelshaw was ever relieved of its obligations of confidentiality. Only the Council could relieve McPhee Kelshaw of its obligations and there is no evidence that it did so.
Mr Singleton submits that from at least mid-January 2018 it was contemplated that the reports would be privileged. It does not matter whether there was a period in mid-December 2017 when privilege was discontinued or that for a time there was a lack of privilege attaching to the reports.
In regard to the issue of waiver, Mr Singleton submits that Mr Lipscombe must articulate the connection between the act that is said to have waived privilege and the particular document or communication over which privilege is said to have been waived, and that Mr Lipscombe has not done so.

Discussion

This application concerns the Council's decision to refuse the Applicant's access application in regard to two documents, IR1 and IR2. The Council refused access on the ground that the documents are subject to client legal privilege. Two issues have arisen for consideration: 1. Did privilege attach to the documents when they were created? 2. If so, has the privilege been waived?

Did privilege attach to the documents when they were created?

The Applicant contends that Clyde & Co. was retained by the Council and that McPhee Kelshaw was merely acting as the Council's commercial agent when it engaged Clyde & Co. I do not agree with that contention. The evidence of both Mr Tooma and Mr Cork is that McPhee Kelshaw engaged Clyde & Co. There is documentary evidence before the Tribunal that leaves no doubt about the circumstances in which Clyde & Co. was engaged. The Applicant does not have access to much of that evidence as it was admitted on a confidential basis. Section 64(d) of the Civil and Administrative Tribunal Act 2013 applies to that evidence.
McPhee Kelshaw was retained generally by the Council as one of its external solicitors. It is apparent from the material that has been filed with the Tribunal on a confidential basis that McPhee Kelshaw provided advice to the Council on a range of matters and this included issues relating to the Council's management of asbestos.
In November 2017 the Council instructed McPhee Kelshaw to engage suitably qualified investigators to carry out an investigation relating to the Council's management of asbestos. In response to those instructions McPhee Kelshaw, through Mr Cork, engaged the services of Clyde & Co.
Mr Cork's evidence is that that McPhee Kelshaw retained Clyde & Co. for the dominant purpose of providing legal advice to the Council. He also gave evidence that, at the time, he considered that it was possible that SafeWork might launch prosecutions against the Council or its officers. Material that has been filed with the Tribunal on a confidential basis supports that evidence.
The evidence before me does not support the Applicant's contention that McPhee Kelshaw were merely acting as the Council's commercial agent when it engaged Clyde & Co.
I am satisfied that a client-lawyer relationship existed between McPhee Kelshaw and the Council when McPhee Kelshaw engaged Clyde & Co. The Council was the client and McPhee Kelshaw was the lawyer.
I am also satisfied that McPhee Kelshaw engaged Clyde & Co. for the dominant purpose of providing legal advice to the Council. McPhee Kelshaw was to provide advice to the Council in regard to issues relating to the Council's management of asbestos and in respect of anticipated litigation. McPhee Kelshaw had an obligation of confidentiality owed to the Council that arose from the client-lawyer relationship. Mr Cork's instructions to Clyde & Co. incorporated the terms of reference for the investigation that were approved by resolution of the Council's governing body.
It is clear from the evidence that subsequent terms of reference were adopted by the Council in mid-December 2017 and the final terms of reference were communicated to Clyde & Co and Mr Tooma.
Mr Tooma's evidence is that Clyde & Co. had a contract with McPhee Kelshaw. Mr Tooma never communicated with the Council; he only communicated with McPhee Kelshaw. I am satisfied that Clyde & Co. had an obligation of confidentiality to McPhee Kelshaw that arose from their relationship. The reports were created in the context of those relationships. The reports were commissioned by McPhee Kelshaw for the purpose of McPhee Kelshaw providing the Council with legal advice and/or legal services in respect of anticipated litigation.
Clyde & Co. was retained in November 2017. It is common ground that on 15 December 2017 the Council passed a resolution that authorised Mr Tooma to conduct his investigation in consultation with SafeWork, the USU and other relevant stakeholders and to publicly release his report.
However, as Mr Sinclair has argued, Clyde & Co. had contracted with McPhee Kelshaw and was subject to an obligation of confidentiality to McPhee Kelshaw that arose from their relationship. McPhee Kelshaw did not authorise Mr Tooma to publish the reports. Clyde & Co. had not contracted with the Council and therefore the Council's resolution does not change the contractual arrangement between Clyde & Co. and McPhee Kelshaw.
It is not in dispute that following the Council resolution on 15 December 2018 Mr Tooma received instructions from Mr Cork that his investigation was to be an open investigation. However, the meaning of the expression 'open investigation' is not immediately apparent.
Mr Tooma gave evidence that from 15 December 2018 he understood that he would be conducting a public investigation which meant that the public knew that an investigation was being conducted. He also understood that he was authorised to release the reports. He said that the authorisation came from McPhee Kelshaw.
Mr Tooma consulted with the USU and SafeWork to keep them informed of how his investigation was progressing but he did not report the conclusions of his investigation through that consultation.
Mr Cork gave evidence that copies of the reports were provided to the Minister and to the Ombudsman under compulsion of law. Copies were also given to SafeWork, to the EPA and to the OLG on the understanding that the documents were privileged; that they were confidential; and that they were defamatory. The reports were accepted on that understanding and on the understanding that they would not be released. This evidence is supported by the material that has been filed with the Tribunal on a confidential basis.
It is apparent from the material that has been filed with the Tribunal on a confidential basis that the summary provided in paragraph [23] of Mr Cork's 19 November 2019 that I have set out in paragraph [65] above is a reasonable one. I am satisfied that Clyde & Co. was to submit each report to McPhee Kelshaw for the purpose of McPhee Kelshaw's providing legal advice and litigation services to the Council. McPhee Kelshaw would provide the reports to the Council and each report would remain confidential until after it had been reviewed. The Council would determine the extent to which each report would be made public.
I am satisfied that regardless of the period of uncertainty that followed the 15 December 2017 Council resolution, that uncertainty had been resolved by mid-January 2018.
In my view, when Clyde & Co. came to prepare IR1 and IR2, it was subject to an obligation to keep the reports confidential and not provide them to anyone except McPhee Kelshaw.
The reports were prepared in the context of a client and lawyer relationship; there is a confidential nature to them in the sense that Clyde & Co. was subject to an obligation to keep the report confidential; and the reports were brought into existence for the dominant purpose assisting McPhee Kelshaw to provide legal advice or services to the Council.
It follows that IR1 and IR2 were subject to legal professional privilege when they were created.

Has privilege been waived?

In Attorney General (NT) v Maurice and Others (1986) 161 CLR 475 the High Court outlined a test which stated that implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. However, in Mann v Carnell (1999) 201 CLR 1 the High Court considered circumstances in which LPP will be impliedly waived and noted that where particular conduct is inconsistent with the maintenance of the confidentiality which LPP seeks to protect: … the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege…
The High Court emphasised that inconsistency, rather than fairness, is the appropriate test: What brings about the waiver is the inconsistency between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
Mr Singleton submitted that Mr Lipscombe has not identified either the unfairness that would arise if the privilege is maintained that would bring it within the test stated in Attorney General (NT) v Maurice nor has he identified any inconsistency between the conduct of the client and maintenance of the confidentiality as discussed in Mann v Carnell.
Mr Lipscombe points to the fact that copies of the reports were given to SafeWork, to the EPA and to the OLG. At the time he provided the reports to Mr Bultitude of SafeWork, Mr Cork considered that it was possible that SafeWork might launch prosecutions against the Council or its officers. Mr Lipscombe submitted that one of the indicia of being inconsistent with the maintenance of the privilege is providing copies of documents over which you assert privilege, without compulsion of law, to another person whose interests are counter posed to your own.
Mr Lipscombe contends that notwithstanding that the reports were given in confidence, it was in a manner that was inconsistent with the maintenance of the privilege.
I do not agree with Mr Lipscombe's contention that the provision of the reports to Safework brings about waiver of the LPP. As noted above, Safework is the relevant regulator and from 15 December 2017 both Clyde & Co. and McPhee Kelshaw understood that copies of the reports were to be made available to SafeWork. Clyde & Co.'s obligation to keep the report confidential was predicated on that understanding. Similarly, the relationship between McPhee Kelshaw and the Council held the same understanding. The reports were made available to SafeWork on the understanding that they were privileged and confidential. The reports were accepted on that understanding and that they would not be released. In each of those dealings, the Council has taken steps to maintain the confidentiality of the reports within the various relationships.
There is no suggestion that SafeWork breached the undertaken that was given to maintain the confidentiality of the reports. I do not agree that the provision of the reports to Safework was inconsistent with the maintenance of the privilege.
In the circumstances I am not satisfied that privilege has been waived.
Accordingly, Clause 5 of Schedule 1 to the GIPA Act applies. It is conclusively presumed that there is an overriding public interest against disclosure of the information and no further assessment or weighting of considerations in favour of release occurs.
In my view, the Council's decision to refuse to provide access to the information was the correct and preferable decision and therefore it should be affirmed.

Order 1. The decision under review is affirmed.

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: 04 May 2020

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