McNeill v Clarence Valley Council

NCAT Administrative and Equal Opportunity|2024-09-15

Background

These proceedings concern a request that Craigh McNeill (the applicant) made to Clarence Valley Council (the respondent) on 5 March 2024 (the GIPA request) for the release of documents under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act) relating to himself, as follows: In relation to the Concerns Notice dated 18 July 2023 pertaining to Clarence Valley Council, noting the following details: Our client: Clarence Valley Council Our reference: JCI/CLA008-0005 Representation: We act on behalf of Clarence Valley Council Please provide: 1. All information of any associated correspondence and other documentation regarding the Concerns Notice dated 18 July 2023, including but not limited to the use of Council facilities to procure the service, communication of payment for service discussion, emails to and from Council's office. 2. All information regarding emails sent and received by the General Manager Ms Black, including but not limited to the email sent by Ms Black to Councillors, in August 2023, discussing with or advising the Councillors of the action associated with Sparke Helmore. 3. Access to all documents, correspondence, and any other form of communication or material provided to Sparke Helmore Lawyers that were necessary for them to evaluate complaints about defamatory statements made against Ms Laura Black, General Manager of Clarence Valley Council, as outlined in their Concerns Notice dated 19 July 2023. 4. Access to all documents, correspondence, and any other form of communication or material provided to Sparke Helmore Lawyers that were necessary for them to determine the content's potential defamatory nature. 5. Access to all documents, correspondence, and any other form of communication or material provided to Sparke Helmore Lawyers that were necessary for them to recommend actions based on their evaluation. These requests include, but are not limited to, copies of the original complaints, internal memos, emails, statements, and any reports or analysis documents that Sparke Helmore used to assess the complaints' validity and to prepare the subsequent legal notice.

Application for administrative review

On 13 May 2024, the applicant filed the current application for administrative review of the respondent's decision dated 4 April 2024 on the following grounds: Please see attached: GIPA2024-0007 McNeill v CVC Appeal against decision to withhold information. pdf Evidence of potential misconduct by General Manager Laura Black. Pdf Actions of Ms Black 352024.pdf
In the annexed document headed "Appeal to NSW Civil and Administrative Tribunal (NCAT)" dated 6 May 2024, the applicant stated, relevantly: … The concerns notice was issued by the law firm Spark Helmore Lawyers on behalf of Miss Laura Black, the General Manager of Clarence Valley Council. The notice was directed at Yamba Community Action Network, Inc. (Yamba CAN), a local community group that advocates for protecting the environmental and maintaining the vibrant culture of Yamba Township. In late 2022 and early 2023, there was an ongoing debate within the Council regarding the Treelands Drive Community Hub project. Two main options were being considered - Option I involving demolishing and rebuilding the existing community centre, while option 2 proposed refurbishing the centre and adding a new Library building. The councillors had passed a resolution in December 2022 to investigate pursuing Option B through a contract variation for detailed design. However, Miss Black allegedly failed to follow through on this resolution and appeared to steer the project towards Option A instead, providing misleading information about option B's feasibility. Yamba CAN was vocal in criticising Miss Black's handling of the project, particularly her failure to follow the Council's resolution on investigating Option B. Stones come amiss Black initiated legal action against Yamba CAN Through lawyers, Sparke Helmore. On July 18, 2023, Spark Helmore issued a Concerns Notice to Yamba CAN on behalf of Miss Black, alleging defamatory statements made by the group against her. They concerns notice represented the start of potential defamation proceedings by Miss Black against Yamba CAN over their criticism of her management of the project. Notably, Miss Black changed the litigant from the Council to herself personally, potentially to avoid Council scrutiny over her actions as General Manager. By making it a personal legal matter, Miss Black could claim legal professional privilege over communications related to the Concerns Notice, obstructing transparency. I maintain that their criticism was valid given Miss Black's alleged failure to follow council resolutions and provide accurate information to councillors. The issuance update concerns notice escalated the conflict between Miss Black and Yamba CAN over the Community hub project, with allegations of defamation on one side and claims of mismanagement on the other. It also raised questions about the use of legal actions by public officials against community groups…
The applicant then set out his "grounds for appeal" as follows: 1. Invalid claim of legal professional privilege The notice of Decision asserts that the information requested is protected under LPP. However, as detailed in evidence, the defamation action represented by the Concerns Notice, was undertaken at Miss Black's personal expense, and the Council did not contribute financially. This personal nature undermines the claim of LPP, which typically protects lawyer-client communications for council legal matters. The Mayor's letter explicitly states this is a personal matter between Ms Black and Yamba CAN, and the Council has not taken legal action against Yamba CAN, This distinction between personal and official capacities is crucial for determining LPP applicability, as established in [2015] NSWCATAD 95.
I note that this case citation refers to a decision of Senior Member Lucy in Tebbutt v Minister for Lands and Water (Tebbutt). However, I also note that this decision concerned whether a Minister of the Crown could be "the State" for the purposes of the definition of "client" in the Evidence Act 1995 (NSW) in the context of a claim for Parliamentary Privilege.
In my view, the decision in Tebbutt does not assist the applicant in relation to the issue of whether a solicitor/client relationship existed at the time that the legal advice was sought by and provided to Ms Black.
The applicant also asserted that Ms Black's disclosure of information to councillors "contradicts the confidentiality required to maintain LPP" and that this was an "inconsistent waiver" for the purposes of the High Court's decision in Mann v Carnell [1999] HCA 66.
The applicant then argued that there are four relevant public interest considerations in favour of disclosure of the information, namely: Disclosure of the requested information could raise nimbly, be expected to promote open discussion of public affairs, enhance Government Accountability, and contribute to positive and informed debate on this important local issue involving a high ranking Council official: s 12(1)(a); Disclosure would inform the public about the operations of the Council, particularly its policies, practises and decision making processes for dealing with legal matters and potential misconduct by senior officials such as the General Manager: s 12(2)(b); If Council resources or facilities were involved in the legal action represented by the Concerns Notice, disclosure could enable effective oversight of the expenditure of public funds: s 12(2)(c); Critically, disclosure could reveal or substantiate whether Laura Black, the General Manager, engaged in any misconduct, improper conduct, or breaches of the Local Government Act, or breaches the Code of Conduct for Council Officials (s 12(2)(e) In relation to this matter.
The applicant made extensive submissions headed "Potential Misconduct and failure to follow proper procedures". However, I have not set these out in this decision as those matters arise under legislation with respect to which this Tribunal lacks jurisdiction in conducting an administrative review of a decision under the GIPA Act.
The applicant concluded that "Public interest outweighs privacy".

Procedural matters

Senior Member Higgins conducted a case conference on 3 June 2024. The applicant was self-represented and Ms Caban appeared for the respondent. The Senior Member ordered that the documents filed by the applicant, other than his grounds for review, the 4 April 2024 decision of the respondent that were filed with the current application be returned to him. She remitted the decision dated 4 April 2024 to the respondent for reconsideration and ordered it to file and serve its reconsideration decision by 1 July 2024. She ordered the applicant to notify the respondent and the Tribunal as to whether he wished to pursue his application or withdraw it by 10 July 2024. She listed the matter for a further case conference on 15 July 2024.
On 15 July 2024, Senior Member Montgomery adjourned the matter to 22 July 2024, to enable the applicant time to research the relationship, if any, between information held by the Councillors and information held by the respondent.
On 22 July 2024, Senior Member Ziegler made further directions for the filing and service of evidence and she expressly noted: 7. The tribunal notes that the applicant has confirmed that the only aspect of the respondent's decision in relation to which he seeks a review is the decision made by the respondent that it holds no further documents in response to the application made under the Government Information (Public Access) Act 2009.
Senior Member Ziegler listed the matter for hearing on 25 September 2024.

The hearing

I conducted a hearing in this matter on 25 September 2024, at which the applicant was self-represented and appeared by AVL. Ms Caban appeared for the respondent.
Contrary to the express notation made by Senior Member Ziegler, when the hearing commenced the applicant asserted that he also maintained his dispute that the information withheld by the respondent was subject to legal professional privilege.

The reviewable decision

The Tribunal noted that the respondent complied with Senior Member Higgins' orders and issued a reconsideration decision on 1 July 2024.
The parties agreed that the reviewable decision is therefore that made on 1 July 2024.

Issues for determination

The Tribunal identified the issues for determination as follows: 1. Whether the Concerns Notice was held by the respondent; and 2. Whether the information that the respondent withheld (and lodged with the Tribunal on a confidential basis) is protected by Legal Professional Privilege (LPP). If yes, there is a conclusive presumption of an overriding public interest against disclosure of the information and the public interest test under s 13 of the GIPA Act does not apply.

Respondent's case

Ms Caban stated that the reconsideration decision 1 July 2024 was made by Alexandra Moar. She is present as the applicant gave notice that he wishes to cross-examine her.
The respondent states that it does not hold the Concerns Notice, which was a letter sent by Sparke Helmore Lawyers to Yamba Can Inc.
The results of Council's searches for information responsive to the GIPA request are set out clearly in Ms Moar's Affidavits. Subsequent to the decision dated 1 July 2024, some additional emails were located. However, these resulted from the applicant directly emailing certain Councillors in an attempt to obtain information.
Some of the information that was provided by the Councillors to the applicant contained legal advice over which the respondent claims privilege, being letters from Sparke Helmore Lawyers that are addressed to it. The fact that this information was provided to the applicant directly by Councillors is a matter of concern to the respondent that is to be addressed outside these proceedings.
Ms Caban noted that the applicant asks the Tribunal to order the respondent to conduct more thorough searches for all relevant documents, including any records related to the investigation of Option B in accordance to s 53 of the GIPA Act (page 8 of his bundle of material filed 5th September 2024). The relevant letter is dated 2 September 2024 and refers to two case numbers - regarding an option B to the Concerns Notice.
The Tribunal asked what the relevance of those matters are to the current proceedings. Ms Caban replied that the references to case number 202400268200 and Option B are not relevant at all to these proceedings, and they are the subject of a separate administrative review (listed for hearing on 15 October 2024).
Ms Caban noted that the applicant seeks orders that: 1. The respondent "demonstrate compliance with the State Records Act"; and 2. The Tribunal orders "an independent audit of Council's record keeping practices to ensure compliance with the State Records Act".
Ms Caban argued that the Tribunal does not have jurisdiction under the State Records Act 1998 (NSW) (State Records Act). The Tribunal concurred.
Ms Caban also noted that the applicant asked the Tribunal to review "the administrative decision making process related to the Council's regarding "Option B"". However, that is beyond the Tribunal's jurisdiction and it also the subject of the other administrative review proceedings.
The Tribunal ruled that a review of a Council resolution is a matter that arises under the Local Government Act 1993 (NSW) and that this Tribunal does not have jurisdiction under that legislation in the context of an administrative review under the GIPA Act.

Applicant's case

The Tribunal directed the applicant to comply with its rulings regarding jurisdiction and the issues to be determined in the current proceedings in presenting his case.
The applicant stated that he relied upon a bundle of documents filed on 5 September 2024, which were marked as MFI-1.
However, the Tribunal noted that the applicant also filed a separate bundle of documents on 20 September 2024, which included a copy of an email from Julien Castaldi to Ms Black dated 29 August 2023.
The Tribunal asked the applicant if this was the document that he obtained directly from a Councillor? He replied 'yes', and the Tribunal declined to admit that document into evidence in the applicant's case because it was the subject a claim for LPP by the respondent.
The Tribunal declined to admit a further bundle of documents filed by the applicant, which were headed "Potential breaches of Local Government and State Records Act and Model Code of Conduct", as they raised matters that are beyond the Tribunal's jurisdiction and they did not contain evidence that is logical, probative or relevant to the issues to be determined in these proceedings.
The Tribunal noted that a further bundle of documents filed by the applicant was headed "Chronology of actions by Clarence Valley Council". I asked the applicant what these documents were relevant to? The applicant replied: It's the compilation of actions that we relate to the Council, such as, you know have been commented on by the Department of Regional NSW.
The Tribunal declined to admit these documents on the basis that they are not relevant to the current proceedings.
The Tribunal noted that a further bundle of documents that the applicant had filed is marked "References". I asked what issue in dispute do these documents relate to? The applicant replied: It relates to the chronology of events, and also perhaps the sequence of events.
The Tribunal declined to admit these documents on the basis that they are not relevant to the current proceedings.
The Tribunal noted that a further bundle of documents is marked "5th March 2024 e-mail exchange - Councillors". I asked the applicant whether these are the documents that he from sources other than the respondent? The applicant replied: I believe that they may have come from Department of Regional NSW.
The Tribunal observed that these documents appear to have been obtained from sources other than the respondent and that the applicant would not be permitted to rely upon them to establish that there was a waiver of privilege by the respondent. I asked the applicant to direct the Tribunal to any evidence that he obtained this information directly from the respondent.
The applicant relied "I received them from the Councillor". He subsequently identified the Councillor as Bill Day.
The Tribunal asked the applicant if the Councillor authorised to release them to you on behalf of the Council, or were they acting on their own initiative? The applicant replied "You might have to ask them I don't know".
The Tribunal declined to admit those documents, as the mere fact that the applicant had obtained them from a third party, rather than from the respondent, cannot establish that the respondent waived privilege.
The Tribunal then ascertained that a further bundle of documents filed by the applicant on 16 July 2024 comprise his submissions.

Evidence of Alexandra Moar

The respondent relied upon affidavits from Ms Moar that were sworn on 21 August 2024 and 20 September 2024, respectively. These were admitted into evidence and marked as Ex A and Ex B, respectively.
As the applicant required Ms Moar to attend for the purposes of cross-examination, she was called and sworn and she stated that the evidence in her affidavits is true and correct.

Cross-examination of Ms Moar

The Tribunal again asked the applicant to confine his cross-examination to the two issues in dispute in these proceedings.
The applicant asked Ms Moar what documents are stored in the respondent's electronic document management system (ECM). She replied that documents created by the respondent's staff that are deemed relevant to add to the ECM are stored there. This could include emails, invoices and recommendations. Documents need to be manually uploaded. Most staff have access to ECM and there are varying categories of access depending upon delegation.
The applicant then asked the witness "If a document was to be deleted from the system, who would have authority for that?"
The Tribunal asked the applicant what document he was referring to and he replied "An invoice for legal work, legal opinions, legal advice". The Tribunal disallowed that question and ruled that the claim for LPP would be determined in a confidential hearing under s 107 of the GIPA Act and that claim included any invoice issued for the provision of legal services.
The applicant stated: "I guess my query comes from the issue that invoices have been issued to Council and there's no receipt."
The Tribunal stated: "That goes back to the issue of what documents were held and you can ask this witness questions about documents that relate to the current GIPA request. We are not going back to the other matter that is the subject of a separate listing in October 2024."
The applicant stated that a tax invoice was issued "for the Concerns Notice", which was part of the information that he I sought.
Ms Caban stated, "I understand that a redacted invoice was provided to the applicant to show that it was overturned and not paid by the respondent and that is as far as it goes."
Ms Moar then stated: May I say something that might clarify this. The General Manager emailed Sparke Helmore in relation to a possible defamation matter against two individuals and there was some initial correspondence. There was an e-mail that the applicant received where the General Manager asked the executive support to issue a purchase order for the solicitor from Sparke Helmore and to place it on file in ECM, which was for executive viewing only. That e-mail was placed on ECM and is one of the documents that was released to the applicant with the legally privileged information redacted. There are also further emails in the conversations between the General Manager and the solicitor from Sparke Helmore. This was then determined to be a personal matter of the General Manager and the General Manager paid the invoice for the Concerns Notice out of her own pocket. The respondent did not pay it. The respondent does not hold a copy of the Concerns Notice because it was a personal matter between the General Manager and two members of Yamba Can Inc. The Concerns Notice and invoice are not stored in the ECM.
Ms Caban stated that this evidence is found as Annexure D to Ex A.
Ms Moar then stated: For my second affidavit, I did further searches of the ECM system that stores our documents for information relating to Cole Shepherd and Lynn Cairns of Yamba CAN Inc. I searched their names, I searched their reference number, I searched Sparke Helmore. I searched everything that I could find on here and there's nothing related to the Concerns Notice. It is my understanding that the applicant has obtained a copy of the Concerns Notice, but the respondent does not have it.
The Tribunal observed that this appeared to answer the applicant's question. However, the applicant then stated: "My request was if there was information on the invoice that was received by the Council."
The Tribunal observed that Ms Moar has just given evidence that it is not held by the respondent because it relates to a personal matter involving the General Manager and two members of Yamba CAN Inc.
The following exchange occurred: Applicant: So in essence, is it the Council's position that they created an e-mail for a private matter and sent the invoice to the Council? Tribunal: Who created an invoice for a private matter? Applicant: Sparke Helmore. Tribunal: No, I'm not allowing that question. I do not understand what it's relevant to. The issue is whether or not the respondent holds the information and this witness has stated that it is not held. Now you may not accept that and you may cavil with it, but you bear the practical onus of proving that what you are asserting is true. Applicant: Yes, I guess what I thought was that when invoices would come in, they'd be potentially recorded on the ECM system. Tribunal: Mr McNeill, it is an invoice that was eventually issued in relation to a private matter that does not involve the respondent. Would you please move on. Applicant: Well, well, there's issues. The Council has been involved in the Concerns Notice after 18th July 2023. Tribunal: Mr McNeill, I have made a ruling. Would you please move on.
The applicant then asked Ms Moar, "In in your searches, did you search within the metadata fields?"
The Tribunal sought clarification of that question and asked the applicant "metadata searches for what?"
The applicant replied, "Metadata for emails, any information." He then stated: "The ECM system, as they call it, records metadata… I'm just trying to explain to you what metadata does and is… I'm asking if she used metadata searches for information."
The Tribunal asked Ms Moar to explain how she searched for information. Ms Moar replied: Yeah. So I did a search of names in ECM. In the in the ECM system also I had to look at the other material that was provided and for the decision that was previously made on 4th April, there were requests that the governance officer sent through to the General Manager in relation to the Concerns Notice matter. So I've just gone into ECM into the search function and searched concerns for "Concerns Notice", "Cole Shepherd", "Lynn Cairns" to see what information came up and then I went through it and looked at the date range since Clarence Valley Council's been storing stuff on there since 2004. I looked at the date range and titles to see if there was anything relevant to the "Concerns Notice", "Sparke Helmore", "Cole Shepherd", "Lynn Cairns" and their reference number.
The applicant again asked Ms Moar if she "searched on the metadata?" She replied that she did not know how she would search on metadata in the ECM, but shat she had conducted reasonable searches.
The Tribunal stated that the relevant issue is whether reasonable searches were conducted and based on the evidence before it, the answer to that question is "yes".
The Tribunal asked the applicant if he had any further questions for the witness about her searches before we move on?
The applicant replied, "I believe that metadata is classified as one of the best practices for searching fields for information."
The Tribunal stated that the applicant was welcome to make that submission, but asked him what his expertise was regarding "metadata searching", as he had not filed any evidence about it. The applicant then stated, "No. We'll move on."
The applicant asked Ms Moar whether she holds any qualification in public administration, business administration, community development or related fields? However, the Tribunal asked the applicant what issue this is relevant to and noted that Ms Moar's involvement was to conduct an internal review of the decision dated 4th April 2024 pursuant to the direction made by Senior Member Higgins.
The applicant then asked Ms Moar to explain the types of records that Council is required to create and maintain under the State Records Act?
The Tribunal disallowed that question as it is not relevant to the issues in dispute and the Tribunal does not have jurisdiction under that legislation.
The applicant then asked Ms Moar, "What are the Council's responsibilities under the GIPA Act regarding the maintenance and accessibility of public records?"
The Tribunal disallowed that question as there is no obligation upon an agency to maintain records under the GIPA Act.
The following exchange then occurred: Applicant: The objects of the GIPA Act are to give members of the public an enforceable right to access government information. Tribunal: OK, now you're making submissions. You can make that submission in due course. That is not a question to put to this witness. Applicant: I was just trying to explain to you Senior Member. Tribunal: Just get to the questioning, please. You can ask this witness questions in relation to her decision dated 1st July 2024 and the two 2 issues that I have identified. Applicant: Right. Tribunal: those issues are Whether or not documents are held, and I've already expressed a view that I consider reasonable, searches have been conducted. And the only other issue is whether LPP applies. Applicant: OK. Can I just continue with my questions. Tribunal: If they're relevant to those issues, yes. If not, no.
The applicant then asked Ms Moar, "What systems or procedures are in place to maintain records of Council activities and decisions?"
The Tribunal disallowed that question on the basis that it was not dealing with a dispute or a complaint under the State Records Act.
The applicant then asked Ms Moar, "How does the Council typically document decisions and discussions on public matters of interest on matters of public interest?"
However, the Tribunal disallowed that question as the documenting of decisions arises under the State Records Act and not the GIPA Act. The latter is about access to information, the former is about the creation and storage of records.
Applicant stated that there is an enforceable right to access government information under the GIPA Act. The Tribunal noted that he could make this submission in due course, but the "enforceable right" is not absolute and in this matter it is subject to a claim for LPP over the redacted information. If the claim for LPP is upheld, there is a conclusive presumption that there is an overriding public interest against its disclosure.
The following exchange occurred: Applicant: And my question is, how does the Council typically document decisions and discussions on matters of public interest? Tribunal: And that arises under the State Records Act. How matters are documented does not arise under the GIPA Act. Please move on to matters that are relevant to what I have to decide. I would greatly appreciate it. This is a difficulty where parties have pre-prepared questions. Applicant: Right, this is not my field Senior Member. Tribunal: I understand that, but you are representing yourself in legal proceedings and I expect you to obey my rulings.
The applicant then asked Ms Moar, "What steps to take and to document decisions made based on legal advice?"
The Tribunal again disallowed that question and advised the applicant that if he persisted in asking questions about how decisions are documented, they would be disallowed as they do not arise under the GIPA Act.
The applicant then asked Ms Moar, "How was the Council informed about the decision to seek legal advice?"
The tribunal disallowed that question on the basis that it raised an issue under the Local Government Act, not the GIPA Act, and the Tribunal is not conducting a hearing under the Local Government Act.
The following exchange then occurred: Applicant: Right. In relation to the Concerns Notice and legal matters, how does the Council ensure that all relevant communications related to such matters are properly documented and accessible? Tribunal: Do I really need to repeat my previous ruling? Applicant: What? Tribunal: You may ask this witness questions about her decision dated 1st July 2024. If you don't have any questions for her about that decision, I'm going to release her. Applicant: I just have to make sure that I'm not asking the wrong questions. Tribunal: Well, you've heard what I've ruled so far. Applicant: I guess Senior Member, my questions go to the creation and storage of records… Tribunal: The creation and storage of records arises under the State Records Act and the Local Government Act and not the GIPA Act. I have no doubt you want to ask your questions, but they are not relevant to what I have to determine. Again, you can ask this witness questions relating to two issues I've identified with respect to her decision dated 1st July 2024. Applicant: OK, I'll move on.
The applicant then sought to move on to the issue of LPP. The Tribunal asked him why he states that there is no LPP over the redacted information. the applicant replied: The Council have claimed that it is a private matter and therefore it's not their document. They argued initially that there was a solicitor client relationship.
The Tribunal stated that if legal advice was originally sought on the basis that it was a Council matter and it was provided on that basis, and it was subsequently determined that it was not a Council matter and it became a private matter, that does not mean that the documentation is not subject to a claim for LPP and it does not establish a waiver of privilege.
The Tribunal observed that Ms Moar had given evidence on these matters and asked the applicant whether he had any further questions for her.
The applicant then asked Ms Moar, "Yeah, in relation to the involvement of Council following 18th July, were those interactions with Council and the solicitors in relation to the Concerns Notice..."
The Tribunal observed that the applicant had just stated that this is a private matter. However, the applicant replied, "That that's what Council is claiming, but there's instances of Council's interaction in the matter."
The applicant then stated, "On 14th August 2023, the defamation matter was referred to the insurer." However, the Tribunal stated that this is not relevant to these proceedings. The applicant then stated: My issue is that Council claim it's a private matter, but they're still involved the matter in discussions with the insurer.
The Tribunal asked the applicant where he had sought those documents in his GIPA request, as they appeared to be beyond the scope of it and leave to extend the scope would not be granted at this late stage of a review hearing. The Tribunal stated: Whether or not a claim under different legislation was referred to an insurer under different legislation is in no way relevant to what I have to do and the two issues I am dealing with. I am not going to repeat myself again. If you have any genuine questions relating to those issues for this witness, this is your chance to ask them. Otherwise, I am going to release her.
The applicant stated that he did "not understand from the point of view where there's instances where Council have been involved in the matter."
The Tribunal repeated that it had given him direction as to his questioning of the witness. Applicant: But the issue goes to the professional privilege.
The following exchange occurred: Applicant: If Council is saying it's a private matter and yet still dealing it with through the Council, how can it be a private matter? Tribunal: Because it started out as a Council matter and it became a private matter. That is this witness' evidence, which you are obviously not listening to. For LPP to apply there has to be a solicitor/client relationship at the relevant time. What happens at a subsequent time is irrelevant. The relevant time is when the documents were created. Now can you please move on? Applicant: Yeah. Well, I can't see this that point going any further because essentially you know we can't discuss the fact that Council is… Tribunal: You can make submissions about it, but at the moment you're cross-examining a witness. This is not the time for you to make submissions. Do you have any other questions for this witness? Applicant: I can't because I haven't made the submission to justify the questions. Tribunal: So is that a no? Applicant: A no to what? Tribunal: Now you're just wasting my time. Do you have any further questions for this witness in relation to the two issues I have identified regarding her decision dated 1st July 2024, yes or no? Applicant: No.
As Ms Caban did not seek to re-examine Ms Moar, the Tribunal excused her from further attendance.

Need for a confidential hearing

As the respondent filed copies of the disputed information with the Tribunal on a confidential basis, it was necessary to conduct a hearing in the absence of the applicant to determine whether that information was properly subject to LPP.
The applicant was advised of this process and that a confidential hearing would be conducted in his absence, after which the Tribunal would reserve its decision. He was excused from further attendance.

Confidential hearing

The Tribunal then conducted a confidential hearing, during which it examined the documents that are subject to the claim for LPP and heard confidential submissions from Ms Caban.
The schedule of documents to the decision dated 1 July 2024 indicated a claim for LPP under cl 5(1) of Sch 1 of the GIPA Act in respect of the documents numbered as follows: No. Description Date Authors 1a ECM2496545 v1 FW - Seeking legal opinion - Clarence Valley Council - Original email 19/12/2022 from General Manager Laura Black to Sparke Helmore titled "Seeking legal advice on words and actions taken by community members" Legal advice response 23/12/2022 and email chai with legal professional privileged information 19/12/2022 Laura Black and Julien Castaldi 2 ECM - 2496722 - v1-FW Seeking legal opinion Clarence Valley Council. Attachments to email - as ib. 4 March 2024 Rodney Stephens (Clarence Valley Independent) - communications team - Laura Black and Julien Castaldi Email originated from the Independent Newspaper wanting a comment on comments made from Yamba CAN. Email communication to Julien Castaldi Partner Sparke Helmore Lawyers on 14/07/2023 3 ECM-2598428-v1-scan-jhale-2024-03-04-10-55-17 4 March 2024 Mayor Peter Johnston to Julien Castaldi Email from the Mayer Peter Johnston to Sparke Helmore requesting clarification of the matter 4 Email from Laura Black to Councillors 30 August 2023 24 August 2023 to 30 August 2023 Councillor Bill Day to Mayor Johnston and Laura Black Email originated from Councillor Day on 24 August 2023 regarding potential defamation action against Yamba CAN and response from GM Laura Black on 20 August 2023 with legal advice from Julien Castaldi

Consideration

In determining this application I have considered all of the evidence filed by the parties as well as their written and oral submissions, although I have not specifically referred to the written submissions in this decision.

Legal principles

The legal principles under consideration are not in dispute.

Administrative Decisions Review Act 1997 (NSW) (the ADR Act)

The current application is brought before the Tribunal under s 63 of the ADR Act, which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
On an application made under s 63, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

The GIPA Act

In respect of access applications, s 9(1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
I am satisfied that the decision dated 1 July 2024 is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.
However, I note that by operation of Sch 1 cl 5(3) of the GIPA Act, the respondent's decision to not waive LPP is not reviewable.
In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.
Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).
Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows: 53. Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
Section 107 of the GIPA Act provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
Sch 1 cl 5 of the GIPA Act provides: 5. Legal Professional Privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

Reasonable searches

While the applicant's submissions indicate that he disputes that the respondent conducted reasonable searches, as required by s 53 of the GIPA Act, the only real dispute that he sought to raise during the hearing concerned an assertion that Ms Moar did not conduct searches using metadata.
The Tribunal pressed the applicant to clarify the basis on which he asserted that a metadata search should have been conducted, but he was unable provide any clear response and only responded to the effect that he considered that a metadata search was "the best search available".
In my view it is not sufficient for the applicant to merely assert that the respondent's searches were inadequate. He bears a practical onus of establishing that there are reasonable grounds for believing that further documents exist and are held by the respondent.
Ms Moar's evidence regarding the searches that she conducted in undertaking the internal review and making her decision dated 1 July 2024 was not seriously challenged by the applicant in cross-examination.
I accept Ms Moar's evidence and I am satisfied that the respondent conducted reasonable searches as required by s 53 of the GIPA Act and that the documents relating to the Concerns Notice are not held by the respondent.

Legal Professional Privilege

I am satisfied that the withheld documents (identified in the Schedule of Documents to the decision dated 1 July 2024 as documents numbered 1a, 2, 3 and 4) are properly protected by LPP under sch 1 cl 5 of the GIPA Act.
I am satisfied on the evidence before me that when Ms Black initially sought legal advice from Mr Castaldi of Sparke Helmore, she did so in her capacity as the General Manager of the respondent and that a solicitor/client relationship came into existence at that time.
Based on advice received from Mr Castaldi, the respondent determined that it could not initiate defamation proceedings and that the matter was properly considered a personal matter between Ms Black and two members of Yamba CAN Inc. From that point onwards, there was a solicitor/client relationship between Ms Black personally and Mr Castaldi of Sparke Helmore and the retainer between Mr Castaldi and the respondent was terminated.
There is no evidence before me that establishes that Ms Black has waived her claim for LPP. There is also no evidence that she authorised any Councillor to release any information relating to the Concerns Notice to the applicant.
For these reasons, I am satisfied that there is a conclusive presumption that there is an overriding public interest against disclosure of those documents.
Accordingly, it is not necessary for the Tribunal to apply the public interest test under s 13 of the GIPA Act.

Conclusion

For the reasons set out previously in this decision, I am satisfied that the correct and preferable decision is to affirm the decision under review.

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: 07 November 2024

Government Information (Public Information) Act 2009(NSW)

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Judgment (21 paragraphs)

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Legislation Cited (8)

Cases Cited (11)