Robinson v Transport for NSW; Robinson v Roads and Maritime Services - [2017] NSWCATAD 353 - NSWCATAD 2017 case summary — Zoe

NSWNSWCATAD

Robinson v Transport for NSW; Robinson v Roads and Maritime Services

[2017] NSWCATAD 353

NCAT Administrative and Equal Opportunity|2017-05-24|Before: Dr J

View original source

At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2017-05-24

Before

Dr J

Catchwords

(2009) 261 ALR 311 Prior v Mole [2017] HCA 10
[2006] NSWCA 84 Category: Principal judgment Parties: In proceedings 2016/378398:

Source

Original judgment source is linked above.

Catchwords

(2009) 261 ALR 311 Prior v Mole [2017] HCA 10[2006] NSWCA 84 Category: Principal judgment Parties: In proceedings 2016/378398:

Judgment (27 paragraphs)

[1]

background

RMS is a corporation constituted by s 46(1) of the Transport Administration Act 1988 (NSW). By operation of s 46(2), it is a NSW Government agency. This means that it has the status, privileges and immunities of the Crown (Interpretation Act 1987 (NSW), s 13A(1)).
Mr Robinson applied to RMS for the following information: 1. "All Roads and Maritime (RMS) submissions, recommendations, consultation and/or advice between RMS and the Office of Environment & Heritage and the Department of Planning & Environment relating to the development of the Coastal Management reforms leading to the Draft Coastal Management Bill 2015 and related reform documents. 2. All RMS submissions, recommendations, consultation, comments and/or advice in relation to the Coastal Management Bill 2016. 3. In relation to discussions between RMS, Transport for NSW and Department of Planning in relation to Coastal Management reforms, the draft Coastal Management Bill 2015 and the Coastal Management Bill 2016, the: a. Agendas b. Minutes of meetings c. Action items d. Documents tabled/circulated at meetings. Information to cover period 1 January 2013 to date."
RMS made a decision to partially release some documents and to refuse access to some of the information sought. Mr Robinson applied to the Tribunal for a review of the decision to refuse access to information.
The Tribunal remitted the matter to RMS to conduct further searches. RMS undertook further searches and found further information responsive to the application. It made a supplementary decision and (after consulting about some of that information) a further supplementary decision. The outcome of this was that it released further information to Mr Robinson. In respect of the rest of the information it identified, it claimed that it was Cabinet information, subject to legal professional privilege or both.

[3]

Relevant Legislative Provisions

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"), s 5.
A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).
Subsection 14(1) of the GIPA Act 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."
Clauses 2 and 5 of Sch 1 to the GIPA Act relevantly provide: "2 Cabinet information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents: … (b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet), (c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given), (d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions, (e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet, (f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e). (2) Information contained in a document is not Cabinet information if: (a) public disclosure of the document has been approved by the Premier or Cabinet, or (b) 10 years have passed since the end of the calendar year in which the document came into existence. (3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1). (4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would: (a) reveal or tend to reveal information concerning any Cabinet decision or determination, or (b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet. (5) In this clause, Cabinet includes a committee of Cabinet and a subcommittee of a committee of Cabinet. … 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."
Section 106 of the GIPA Act provides: "106 Decisions about Cabinet and Executive Council information (1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter. (2) If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it. (3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter. (4) NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter. (5) The Premier is a party to any proceedings on an application under this section."
Section 80 of the GIPA Act relevantly provides: "80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: … (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency,…"
Section 100 of the GIPA Act provides: "A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review)."
The burden of establishing that the decision is justified lies on the agencies in these proceedings: GIPA Act, s 105(1).

[4]

Implicit Decision That Information Not Held

Mr Robinson contended that RMS and Transport for NSW held information which they had not identified in response to his access application.
The Tribunal does not have jurisdiction to review an agency's compliance with its obligation, under s 53 of the GIPA Act, to undertake reasonable searches for information in response to an access application. However, the Tribunal may review a decision that an agency does not hold information (GIPA Act, ss 80(e), 100), and it has been generally accepted that this includes review of an implicit decision that an agency does not hold information. Thus, if the agency locates certain information, to which it refuses access and/or provides access, but does not mention any other information, the Tribunal has taken the view that it may review the implicit decision that the agency does not hold any other information. I discussed the issue of whether this approach is correct in McClymont v Department of Family and Community Services [2017] NSWCATAD 202 at [22] to [30], without deciding the issue.
As neither party has submitted that the Tribunal is not entitled to review an implicit decision, I will follow Tribunal authority to the effect that it may: see, for example, Allchin v Police Integrity Commission [2017] NSWCATAD 219; Watson v NSW Trustee and Guardian (No.2) [2016] NSWCATAD 19; Mino v Legal Aid NSW [2015] NSWCATAD 245; and Beer v Commissioner of Police, NSW Police Force [2013] NSWADT 243.
Mr Robinson submitted that there is an absence of material produced by the respondents from the period from 2013 to the end of October 2015 or November 2015, when the Coastal Management Bill 2015 was printed. He accepted that there was evidence that searches had been done. However, he pointed to correspondence from the Minister for Roads, Maritime and Freight, annexed to Mr Robinson's affidavit, suggesting that consultation had taken place with relevant stakeholders. Those stakeholders included RMS and Transport for NSW. He said it would be expected that those agencies would hold information arising from that consultation process.
I accept Mr Robinson's evidence that Minister Stokes said on 13 November 2014, at a conference, referring to the proposed coastal protection reforms, "We will also begin having discussions with councils and key stakeholders about the new legislation." I also accept that the draft bill was settled by October 2015 for public release and consultation. Mr Robinson submits that it was reasonable to assume that RMS, Transport for NSW and other stakeholders would have been consulted and involved in the process for the preceding year or more.
At the end of his oral submissions, referring to the material he alleged was held by RMS and/or Transport for NSW, Mr Robinson said words to the effect: "Such material does not exist. I can't argue against that." It was unclear whether this meant that he was withdrawing his application for review of the implicit decision that the agencies did not hold the information sought. Ms Mattes, for the respondent, made oral submissions in reply which assumed that the issue was still on foot. Mr Robinson then made further written submissions on this issue after the hearing. As a result, notwithstanding these comments, I have assumed that Mr Robinson still seeks review of the implicit decisions that the agencies do not hold further information.
Ms Mattes submitted that, to the extent that there was consultation about the bill, there was limited consultation. Part of the explanation for this, she said, is that RMS and Transport for NSW were not lead agencies developing the reforms. The Office of Environment and Heritage and the Department of Planning and Environment were the lead agencies. RMS and Transport for NSW were consulted as stakeholders, but only to a limited extent.
Mr Robinson cross-examined the respondents' witnesses to elicit information which would suggest there was more material available than the material which had been produced. Ms Sally Bock, Legal Counsel at RMS, had little knowledge of the reform process concerning the coastal management legislation and had not attended briefings about it. She gave evidence, which the Tribunal accepts, that she provided advice about specific issues concerning the coastal management reforms. Her evidence did not indicate that RMS held more material which had not been located or produced.
Mr Ian Young, the Acting Director of Cabinet Services, was previously a Cabinet and Parliamentary Services Officer with responsibility of conducting searches to respond to the access application Mr Robinson made to Transport for NSW. I accept the following evidence which he gave: 1. Once an access application is received by Transport for NSW, the Information and Privacy teams sends out a search request to the Business Manager of the Customer Services Division; 2. The Business Manager then cascades the request down through the various business areas within the Division; 3. Certain teams are then asked to conduct searches responding to the application; 4. On 12 December 2016, Mr Young undertook searches of the document management system used by the Customer Services Division, for documents relating to "Coastal Management" and "Coastal Management Bill" and identified a number of documents responsive to Mr Robinson's request. 5. On 14 May 2017, he reorganised the Cabinet Services electronic filing system and discovered that documents had for a short time been saved in an electronic location which was not normally used. He checked that location and identified a further document responsive to Mr Robinson's access application. The document is a Cabinet Submission summary.
Under cross-examination, Mr Young said he had limited knowledge of searches conducted in other areas of Transport for NSW. He also said he was not familiar with the coastal reforms "in any particular detail." He said his knowledge of the coastal reforms was limited to the point in time covering the Cabinet submission. He could not recall any briefings about the reforms. His evidence does not satisfy me that Transport for NSW has further documents or information which it has not located or produced.
Jennifer Wiggins, General Manager, Government Information Services in the RMS, oversees a team which is responsible for coordinating RMS's comments on draft Cabinet submissions. She gave evidence under cross-examination, which I accept, that she was not aware of the specifics of the coastal management reforms, including as to when they commenced. She said she did not recall specific discussions about the searches in response to the access application because the searches are undertaken by the Information and Privacy Team, which was disassociated from her day to day role. There was nothing in her evidence to suggest that RMS held information other than that it identified.
Mr Scott Kelly, Acting Principal Policy Officer at the Office of Environment and Heritage, said that Stage 2 of the reforms had already commenced when he started in agency (in December 2013). He said that preparation started on drafting instructions to Parliamentary Counsel for the draft Coastal Management Bill in about mid-2015. He confirmed that there was consultation with other agencies through the Coastal Reform Interagency Working Group and that the Coastal Boundaries Interagency Working Group was also working on elements relating to coastal reforms. He said that the Coastal Boundaries Interagency Working Group was first convened in February 2015 and included RMS. He could not recall whether it included Transport for NSW. He did not think that an RMS representative ever attended the Coastal Reform Interagency Working Group meetings but recalled that an RMS representative attended Coastal Boundaries Interagency Working Group meetings. Mr Kelly said that agencies on the email list for an interagency working group would have received minutes, proposal papers, and information about matters considered by the group. I accept all of this evidence, which was not challenged.
Mr Robinson did not submit that RMS held more minutes, proposal papers or other information from an interagency working group than it had identified. Mr Kelly's evidence was of a general nature and he is not, and was not at the relevant time, within RMS. His evidence does not lead me to conclude that RMS holds more information responsive to Mr Robinson's access application than the information it has identified.
Ms Clarinda Campbell is the Manager, Information and Privacy within RMS. She was responsible for coordinating the original and supplementary searches responding to Mr Robinson's access application to RMS. She gave evidence about the identification of business areas relevant to the search and the conduct of searches. She also gave evidence about the business areas which had in fact carried out searches and additional searches.
Mr Robinson cross-examined Ms Campbell. Ms Campbell explained the searching process in more detail said that she was satisfied that reasonable searches have been conducted, in part because of the certification processes employed. There was nothing in her evidence which suggested that, after the further searches had been conducted, the searches as a whole were not reasonable or that RMS held further responsive information that it had not identified.
Mr Fifield, Manager, Survey within the Maritime Division of RMS, was the RMS representative on the Interagency Working Group from January 2016 onwards. His evidence was that he did not get a "handover" of the files of the RMS representative from whom he took over. He also said that he was not a representative on the Coastal Reform Interagency Working Group and only received one document from that group.
Mr Fifield said he received briefing papers and agendas in respect of the Interagency Working Group's meetings but that he did not provide material to that group, other than feedback on documents he was asked to comment on. He did not recall any material being handed out at meetings. When asked about other documents, he said that he had provided all of the documents he had in relation to this matter to the appropriate person who had made a decision about their suitability for release.
Mr Robinson did not challenge the veracity of Mr Fifield's evidence or submit that his evidence indicated that there were additional documents responsive to his application which had not been located. I accept Mr Fifield's evidence and do not consider that it indicates that RMS holds responsive information which it has not identified.
Ms Mattes has provided a reasonable explanation for there being less information held by RMS and Transport for NSW than Mr Robinson expected, being that there was limited consultation with those agencies and that neither agency was a lead agency in the reforms.
I affirm the implicit decisions of both agencies that they do not hold any more information than the information they have identified in their decisions, and the further information which they have identified during the hearing.

[5]

Relevance of Inadvertent Disclosure

During the course of the hearing, it became apparent that RMS had inadvertently released to Mr Robinson documents containing information to which it had refused access.
As indicated above, RMS conducted further searches and made a further determination about Mr Robinson's access application in December 2016. RMS created a PDF document comprising: 1. the notice of supplementary decision, 2. an annexed schedule setting out the additional documents found and RMS's decision in relation to the information in each of them, and 3. the documents containing the information which RMS had decided to release.
RMS then forwarded the PDF document to the Crown Solicitor's Office by email, for the Crown Solicitor's Office to forward to Mr Robinson by email.
RMS made another supplementary decision in January 2017 and the same process occurred.
The documents sent to Mr Robinson (that is, the documents to which he had been granted access) included emails. In many cases, a decision had been made to grant access to the email, but not to an attachment. However, it was possible to click on the header of an email which identified an attachment where that attachment was described and, by so doing, obtain access to the document which had been attached to the email. Neither RMS nor the solicitors at the Crown Solicitor's Office were aware that this was possible when they sent the PDF document by email.
The information inadvertently disclosed to Mr Robinson included information which RMS claimed was Cabinet information and information which RMS claimed was subject to legal professional privilege.
At my invitation, the parties filed written submissions after the hearing, concerning the effect of the inadvertent disclosure on the Tribunal's review.
Mr Robinson submitted that some of the emails provided to him had been partially redacted, with the redacted parts marked "Cabinet" or "LPP". In respect of the attachments inadvertently disclosed to him, however, he says the email contained no warning of confidentiality in relation to the attachment, and was not marked "Cabinet" or "LPP". He says that the decision of 16 December 2016 applied, on its face, to the emails and their attachments and that he was entitled to accept it on its face.
Mr Robinson made a similar submission in relation to the information inadvertently released to him with the further supplementary decision dated 30 January 2017. However, in relation to this decision, he made the additional submission that, if the agency had decided to refuse him access to attachments to certain emails, the agency had not given him notice of its decision as required by s 57(1) of the GIPA Act. He said further, "if the respondent is not estopped from claiming that a decision to grant access has been made, the Tribunal should not entertain any further agitation by the respondent in relation to the disclosure, first because the applicant has not sought review of the decision (in respect of those documents); and secondly, on the grounds of futility."
I accept the respondent's position that the Tribunal is required to continue to review the decision of RMS to refuse access to the information it inadvertently disclosed. The word "decision" is not defined in the GIPA Act, nor is it defined in the Interpretation Act. Accordingly, it is to be given its ordinary meaning. No "decision" was made to provide access to the information which was inadvertently disclosed. To the contrary, for the reasons which follow, RMS made a decision to refuse access to that information.
The supplementary decision dated 16 December 2016 states that RMS had been directed to undertake fresh searches and prepare a supplementary decision. It informed Mr Robinson that information had been located. Documents containing that information are set out in a table in Annexure 1 to the notice of supplementary decision. A column headed "Decision" indicates that the decision in relation to specified documents is either "Refuse", "Part Release (Cabinet information redacted)" "Part Release (LPP information redacted)," "Part Release (Cabinet and LPP information redacted)" or "Subject to consultation." Attachments to emails are amongst the information to which access is refused or partially refused, identified in the schedule as separate items. Redacted documents are attached to the supplementary decision notice. These are the documents which RMS decided to partially release. Where information has been redacted, RMS has marked the redaction "Cabinet" or "LPP". Annexure 1 provides the page numbers of the information partially released and there are no page numbers for attachments to emails (as they do not appear in the pdf without clicking on the attachment to the emails the text of which appears on the pdf).
On balance, I am satisfied that the decision communicated was a decision to refuse access to the attachments to the emails. Whilst the attachments to the emails were not marked "Confidential," "Cabinet" or "LPP," it was clear from the Notice of Decision, which paginated the information provided, that it was only intended to provide access to the body of the emails. The attachments to which access was refused were described and set out in the table in Annexure 1, with the decision to refuse access clearly indicated. The nature of the attachments is also relevant. The fact that one attachment was a letter providing instructions to the Crown Solicitor, and that another was a draft Cabinet submission, in circumstances where RMS was denying access to information in Cabinet documents and information subject to legal professional privilege, would also have alerted a reasonable person to the circumstance that disclosure was likely to have been inadvertent. Mr Robinson does not give evidence that he in fact believed that RMS had intentionally granted him access to the information.
The further supplementary decision dated 30 January 2017 is drafted in a way which is apt to mislead. It contains a table which contains, under the heading "Information," descriptions of nine emails. In a column headed "Access" the word "Full" appears next to the description of each email. There is no mention of attachments. This could easily give the impression that the decision of RMS was to grant access to the attachments, as well as to the body of the emails. Nevertheless, I am satisfied that, when read in context, the further supplementary decision communicates a decision to provide access only to the information contained in the body of the emails described in that decision.
The relevant context is as follows. The Tribunal had remitted the matter to RMS for reconsideration and, in particular, so that it could conduct further searches. RMS had decided, in its supplementary decision, to refuse access to the information contained in the attachments to the emails which it located when conducting further searches and had described those attachments. It should have been clear at this point (or at least it could have been deduced) that RMS was consulting about giving access to information in the body of certain emails, not about giving access to the attachments to them. In the notice of further supplementary decision, a column on the left hand side of the table providing the decision to grant access is headed "Page Ref." and states only "16 pages". There are 16 pages containing the body of emails attached to the decision. This suggests that it was only intended to grant access to the body of the emails as attached. Further, given that the GIPA Act is concerned with information and not documents, the decision was not required to deal with information about which a decision had already been made.
For these reasons, I find that the decision made on 30 January 2017, reasonably construed, was to provide access only to the information in the body of the emails attached to the notice of decision. Access to the information in the attachments had already been refused.
The Tribunal's role is to review the decision of RMS to refuse access (GIPA Act, s 100; Administrative Decisions Review Act 1997 (NSW), s 63). The inadvertent disclosure of the information does not alter the Tribunal's statutory task.
I do not accept Mr Robinson's submission that he did not seek review of the decision in relation to the attachments provided. Presumably he means he did not seek review of what he construes as the decision by RMS to provide access to them as he submits that he was not aggrieved by the release of documents. Ms Clarinda Campbell, the decision-maker, gave evidence that the documents which were mistakenly released to Mr Robinson were documents to which RMS had refused access, as set out in Annexure 1 to the supplementary decision. As indicated above, Annexure 1 lists attachments to emails to which access has been refused, giving descriptions, and includes the attachments inadvertently provided to Mr Robinson. By continuing with the review in the Tribunal after the matter had been remitted to RMS, Mr Robinson sought review of the decision to refuse access to these documents.
The Tribunal may refuse to review or to deal further with a review of a decision of an agency if it is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance: GIPA Act, s 109. Neither party has suggested that the application is (or has become) frivolous, vexatious, misconceived or lacking in substance as a result of the inadvertent disclosure.
I do not think that it is appropriate, in this case, to refuse to deal further with the review, insofar as it relates to the information which was inadvertently disclosed. There may be utility in the review, given that the respondent contended, at the hearing, that Mr Robinson was legally restricted in how he could deal with the information. I do not need to decide whether this is correct; the very fact of RMS making that claim may inhibit Mr Robinson in his dealing with the information. Further, it is useful for the parties to know whether the Tribunal decides the information is Cabinet information or subject to legal professional privilege or not. If the Tribunal were to find that some of the information was not subject to either consideration against disclosure, then Mr Robinson would be entitled to deal with it as he wished. As he pointed out, under s 73(1) of the GIPA Act, an agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.
I will deal with the submissions as to whether Cabinet information loses that character by reason of the inadvertent disclosure, and as to whether legal professional privilege has been waived by the inadvertent disclosure, later in these reasons.

[7]

Cabinet Information Claims

The first matter the Tribunal needs to determine is whether there were reasonable grounds for the respondents' claims that some of the information sought is Cabinet information (GIPA Act, s 106(1)). This is to be determined as at the time of the GIPA determination.
The Premier was represented in the proceedings, as is the Premier's right as a statutory party under s 106(5) of the GIPA Act. The Premier had the same legal representation as Transport for NSW and the RMS. When I refer to "the respondents" in relation to the Cabinet information claim, I mean to refer to Transport for NSW and/or RMS and the Premier, as relevant in the particular context.
The words "reasonable grounds" are to be given their ordinary meaning and paraphrases and adaptations of the phrase (such as "not irrational, absurd or ridiculous") should be avoided (McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 ("McKinnon"), Hayne J at 445 [60], Callinan and Heydon JJ at 468 [131]). As Gleeson CJ and Kirby J observed in McKinnon, a determination of whether there were reasonable grounds for a claim "involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue" (McKinnon, at 430 [11]). Their Honours held (at 431 [13]) that, the reference in the provision in the Freedom of Information Act 1982 (Cth) to "reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest": "raises the question whether, having regard to all the relevant considerations available to the [Administrative Appeals] Tribunal, there are matters that are sufficient to induce in a reasonable person a state of satisfaction that disclosure of a document would be contrary to the public interest. The expression "reasonable grounds for the claim" means reasonable grounds for contending that the Minister should be so satisfied. That is the nature of the claim."
The words "reasonable grounds", in a different statutory context, were recently considered by the High Court in Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441. A Northern Territory statute provided that a member of the police force was entitled to arrest a person if the member had "reasonable grounds" for believing the person was intoxicated in a public place and likely to commit an offence. The appellant, who had been arrested under the provision, argued that the arresting officer did not have reasonable grounds for his belief. Kiefel and Bell JJ held (at 445 [4]) that the provision required that the constable hold the relevant beliefs and that "the facts and circumstances" known to the constable: "[C]onstituted objectively reasonable grounds for those beliefs. Proof of the latter requires that those facts and circumstances be sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief."
The statutory phrase differs here, because it is not concerned with reasonable grounds for a belief, but rather with reasonable grounds for a claim (as in McKinnon). Nevertheless, reasonable grounds for a claim may entail facts and circumstances sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the claim.
The term "Cabinet" includes, for the purposes of cl 2 of Sch 1 of the GIPA Act, a committee of Cabinet and a subcommittee of a committee of Cabinet (GIPA Act, Sch 1, cl 2(5)). I will use the term "Cabinet" in accordance with this definition.

[8]

Effect of inadvertent disclosure on Cabinet information claims

Mr Robinson submitted that, notwithstanding any inadvertent disclosure, the documents the subject of the respondents' Cabinet information claims did not fall into the category of Cabinet documents. I did not understand him to submit that inadvertent disclosure of the documents had any effect on whether cl 2(1) of Sch 1 to the GIPA Act applied to them. This is, in my view, the correct position. As the respondents submitted, whether or not a document has been inadvertently disclosed has no bearing on the question of whether it answers the description in paragraphs (a) to (f) of cl 2(1).
This position is consistent with authority, albeit in respect of different freedom of information regimes. In Re Robinson and Department of Foreign Affairs (1986) 11 ALN N48, Deputy President R K Todd of the Administrative Appeals Tribunal made the following comments (at n50): "I do not consider that because a document, or a part of a document, has been released by an agency, accidentally or deliberately, it will not be possible to conclude that disclosure of that document would, or could reasonably be expected to, cause damage to the security of the Commonwealth or that reasonable grounds exist for such a claim. A document will not necessarily lose its character as a document the disclosure of which would, or could reasonably be expected to, cause damage to the security of the Commonwealth merely because it has previously been released."
A similar position was taken by the President of the Administrative Decisions Tribunal in FA v Commissioner of Police, New South Wales Police Service [2003] NSWADT 196. The respondent claimed that the exemption in the Freedom of Information Act 1989 (NSW) entitled "Documents affecting law enforcement and public safety" applied. Judge O'Connor said (at [14]): "The agency is entitled to continue to assert the exemption in relation to its documents even though copies of them may now be held by the applicant."
In Retain Beacon Hill High School Committee Inc v Landcom [2006] NSWADT 108 at [10], the Administrative Decisions Tribunal (Handley JM) reviewed the authorities, including those referred to above, and said at [10]: "The principle that emerges from these cases is that the accidental release of a document claimed to be exempt, or fact that the document claimed to be exempt has already been obtained by the applicant through other means, is not determinative of its character."
The same principle applies in respect of whether information is properly characterised as Cabinet information for the purposes of cl 2(1) of Sch 1 to the GIPA Act.

[9]

Whether Cabinet documents may be redacted

Mr Robinson made the submission, in relation to particular documents which were subject to the claim that they contained Cabinet information, that those documents could be released in a redacted form. That is, he submitted that where only some of the information in a document was Cabinet information, he should be given access to the remainder. I note that, in some cases, the respondents have given Mr Robinson access to parts of a document and redacted other parts which are claimed to contain Cabinet information.
The GIPA Act, unlike its predecessor the Freedom of Information Act, generally applies to information. This means that, if there is no overriding public interest against disclosure of the information, then an access applicant is entitled to be granted access to it, even if other information in the same document is subject to an overriding public interest against disclosure. The Cabinet information consideration, in cl 2(1) of Sch 1 to the GIPA Act, is different. It applies to information contained in a document meeting the description of any of the paragraphs (a) to (f) of cl 2(1). Thus, if the document meets such a description, all the information in the document is subject to an overriding public interest against disclosure.
A possible qualification to this is that, "to the extent that [information] consists solely of factual material," it is not Cabinet information, unless specified circumstances apply (GIPA Act, Sch 1, cl 2(4)). It is unclear whether cl 2(4) is intended to allow for the provision of access to solely factual material in documents meeting a description in cl 2(1), or whether cl 2(4) applies where an entire document (for example one submitted to Cabinet) consists solely of factual material. In any event, Mr Robinson did not seek to rely on cl 2(4) and I do not consider that any of the documents in issue consist solely of factual material.
For these reasons, subject to the possible qualification referred to above, I do not consider that the GIPA Act permits the Tribunal, when conducting a review, to make a decision that an applicant be given access to some of the information in a document meeting the description of a paragraph in cl 2(1), and that the applicant be denied access to the remainder of the information. Rather, once the information is found to be contained in a document meeting the description of a paragraph in cl 2(1), the effect of cl 2(1) is that there is an overriding public interest against disclosure of that information.

[10]

Documents prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration: cl 2(1)(b)

The respondents submitted that two documents held by RMS, which contained information the subject of Mr Robinson's access application, had been prepared for the dominant purpose of their being submitted to Cabinet for Cabinet's consideration, within cl 2(1)(b) of Sch 1.
The words "dominant purpose" in cl 2(1)(b) have the same meaning as in ss 118 and 119 of the Evidence Act: D'Adam v New South Wales Treasury [2014] NSWCATAD 68 at [51]. The purpose in question must be "causative in the sense that, but for its presence" the information would not have been prepared: Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11 at [13], [24]; D'Adam v New South Wales Treasury [2014] NSWCATAD 68 at [51]; Searle v Transport for NSW [2017] NSWCATAD 256 at [35].
One of the documents to which this consideration is claimed to apply is a draft of the Cabinet submission which Mr Kelly stated was prepared for Cabinet regarding the Discussion Paper (Document 5). The other was, according to Mr Kelly, prepared for the sole purpose of being attached to the Cabinet submission regarding the Discussion Paper for Cabinet's consideration (Document 4).
Mr Robinson submits that, in his description of Document 5, Mr Kelly does not suggest that the Discussion Paper was attached, or say whether information was extracted from the Discussion Paper. Mr Robinson submits further, that even if it had been, Mr Kelly does not state whether this was for information only. In relation to Document 4, Mr Robinson says that whether it was prepared for the "sole purpose" of being submitted to Cabinet can be determined by examining it.
I accept Mr Kelly's evidence that Documents 4 and 5 were prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration. Mr Robinson did not challenge this evidence when cross-examining Mr Kelly. The question of whether Document 5 or related information was actually submitted to Cabinet is not determinative of the purpose of preparation. In relation to Document 4, I do not agree with Mr Robinson that the Tribunal may determine the purpose of preparing a document simply by examining it; the GIPA Act clearly contemplates that the Tribunal may take into account affidavit evidence to determine whether there are reasonable grounds for a claim that cl 2(1) applies (GIPA Act, s 106(2)).
For these reasons, I find that there are reasonable grounds for the claim that cl 2(1)(b) of Sch 1 to the GIPA Act applies to the information in those documents.
Accordingly, there is a conclusive presumption that there is an overriding public interest against disclosure of the information contained in Documents 4 and 5.

[11]

Documents prepared for the purpose of submission to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared: cl 2(1)(c)

Documents 3, 8, 13, 15, 17, and 22 consist of various drafts of the Coastal Boundaries Reform Discussion Paper prepared by the Interagency Working Group. The respondents rely upon cl 2(1)(c) and 2(1)(f) of Sch 1 to the GIPA Act. Clause 2(1)(f) relevantly captures drafts of documents referred to in cl 2(1)(c).
Ryan Fifield is Manager, Survey within the Maritime Division of RMS. He was the RMS representative on the Interagency Working Group from January 2016 onwards. He gave evidence that Documents 3, 8, 13, 15, 17, 22, 23, and 24 consist of various drafts and evaluation of the Coastal Boundaries Reform Discussion Paper ("Discussion Paper") which was prepared by the Interagency Working Group. He said that the Discussion Paper was primarily drafted by the Office of Environment and Heritage, incorporating feedback and comments made by the members of the Interagency Working Group. He said that his understanding was that the Discussion Paper was being prepared for the purpose of being submitted to Cabinet for Cabinet's consideration as to whether it could be approved for public release.
Mr Robinson has criticised the respondents' evidence in support of their claim that these documents contain Cabinet information, saying that the respondents rely upon Mr Fifield's "understanding" that these documents were being prepared for the purposes of being submitted to Cabinet. Mr Robinson points out that Mr Fifield does not explain why he has this understanding. Mr Robinson says that there is no evidence that Mr Fifield was working on a Cabinet submission or that the material in fact formed part of a Cabinet submission. Mr Robinson says further that Mr Fifield does not display a knowledge of what Transport for NSW did in relation to material produced by the Interagency Working Group or his contribution as a member of a cluster agency. Mr Robinson points to the evidence of Mr Young that Transport for NSW is the lead agency for coordinating formal consultation stages with respect to Cabinet submissions.
I agree with Mr Robinson that the evidence of Mr Fifield's understanding is a less than ideal basis upon which to ground a claim. However, the question for the Tribunal is whether RMS had "reasonable grounds" for its claim that the document was prepared for submission to Cabinet.
Mr Fifield was a member of the Interagency Working Group from January 2016. He was not cross-examined as to how he gained his understanding that the Discussion Paper was being prepared for the purpose of being submitted to Cabinet. He also gives evidence that his "understanding was that the ultimate purpose of the work being undertaken by the IWG was to prepare a submission to Cabinet which outlined options for coastal boundary reform, and to draft a discussion paper regarding these options, to be submitted to Cabinet for its consideration and approval." It is reasonable to infer that he gained that understanding as a member of the Interagency Working Group, either by reading something to that effect in documents he was given or by being told as much. Whilst it is true that there is no evidence that the Discussion Paper was submitted to Cabinet, it is the purpose of preparing the document which is important for cl 2(1)(c), not whether the document ultimately went to Cabinet.
I am satisfied that the Tribunal is entitled to rely upon Mr Fifield's understanding when assessing whether there are reasonable grounds for the claim of RMS. It is part of the "known facts, circumstances and considerations which may bear rationally upon the issue" (McKinnon at 430 [11]).
I am satisfied from my examination of Documents 3, 8, 13, 15, 17, and 22 and from Mr Fifield's evidence that there are reasonable grounds for the claim that they are documents or drafts of documents prepared for the purpose of submission to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared. Accordingly, by operation of s 14 and cl 2(1)(c) and 2(1)(f) of Sch 1 to the GIPA Act, there is a conclusive presumption that there is an overriding public interest against disclosure of the information contained in those documents.
Documents 23 and 24 are dealt with below.

[12]

A document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions (cl 2(1)(d))

The respondents submit that there are reasonable grounds for classifying a document referred to in the original decision of RMS, being "Ministerial Brief dated 19 November 2015," as Cabinet information on the basis of cl 2(1)(d). They also submit that cl 2(1)(d) applies to Documents 18 and 19 and the redacted Action Item 5 within Document 21.
Jennifer Wiggins gave evidence that the document entitled "Ministerial Brief Dated 19 November 2015," and drafts of that document being Documents 18 and 19, were generated in response to a request from the Minister for Roads, Maritime and Freight for a more detailed briefing regarding the exposure Draft Coastal Management Bill Cabinet Submission. Ms Wiggins' evidence is that those documents refer to a decision of Cabinet, provide a summary of the content of a Cabinet submission, provide advice to the Minister on the impacts to the RMS and make recommendations as to future matters.
Copies of Documents 18 and 19 were inadvertently disclosed to Mr Robinson. He submits that Document 18 contains information only; it does not disclose or reveal any Cabinet decision; and it does not disclose the position to be taken by the Minister. Mr Robinson submits that Document 18 is a discussion or briefing paper which provides information only.
Mr Robinson says of Document 19 that it does not contain Cabinet information or disclose the position taken or to be taken by the Minister.
It appears from the face of Document 18 that it was prepared after Cabinet's deliberation on the Coastal Management Bill 2015 and related matters. Mr Robinson's submissions do not squarely address the ground upon which the respondents rely; that is, that Document 18 would tend to reveal information concerning Cabinet's deliberations on a matter. I consider that there are reasonable grounds for the respondents' claim that it would.
As for Document 19, Mr Robinson's submissions again do not address the ground on which the respondents rely. The document does not explicitly reveal information concerning any past decision or deliberations of Cabinet. However, it does refer to a Cabinet meeting and to the nature of certain reforms. I am satisfied, from Ms Wiggins' evidence and a review of the document, that there are reasonable grounds for the claim that it tends to reveal a decision or deliberation of Cabinet.
From my examination of "Ministerial Brief Dated 19 November 2015," I am satisfied that there are reasonable grounds for the claim that it is a document or documents prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning Cabinet's deliberations or decisions.
Mr Kelly gave evidence that Document 21 (redacted Action Item 5) sets out the outcomes of the first meeting of the Interagency Working Group on 4 November 2015, at which Mr Kelly was present. It has been released to Mr Robinson with some redactions. Mr Kelly's evidence was that the redacted Action Item 5 reveals or tends to reveal a previous decision of Cabinet.
Document 21 was inadvertently disclosed to Mr Robinson. Mr Robinson made submissions about the substance of Action Item 5 and submitted that, on its face, two options discussed have Cabinet approval for public release of this information.
Having examined redacted Action Item 5 within Document 21, and taking into account Mr Kelly's evidence, which I accept, I am satisfied that there are reasonable grounds for the claim that this information forms part of a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions. Whether or not Cabinet has approved public release of the information is not relevant to the operation of cl 2(1)(d) unless, possibly, it could be said that because information about Cabinet deliberations had already been publicly released the information would not "reveal" it. It was not submitted that any information about Cabinet deliberations had been released.
I have not considered Action Items 2 or 4 within Document 21 (to which access has been refused). This is because I consider that information in the entire document is Cabinet information on the basis that, because the information in Action Item 5 tends to reveal Cabinet deliberations or a Cabinet decision, all of the information in the document is information to which cl 2(1)(d) applies.
For these reasons, the Tribunal finds that there is a conclusive presumption that there is an overriding public interest against disclosure of the information contained in the document entitled "Ministerial Brief dated 19 November 2015" and in the information in Documents 18, 19 and 21.

[14]

Documents claimed to reveal position taken by Minister for Planning

The respondents submitted that Documents 14 and 32 and redacted material in Document 21 directly revealed the position that the Minister for Planning has taken with respect to matters addressed in the Cabinet submission and Discussion Paper.
Mr Kelly's evidence is that Document 14, an email dated 22 February 2016, reveals the position that the Minister for Planning took in relation to a proposal contained in the draft Cabinet submission and Discussion Paper. I have examined Document 14 and accept that this is so. However, the respondents need to establish reasonable grounds for the claim that the document was prepared before Cabinet's deliberation or decision on a matter. There is some evidence, in Document 14 itself, of a revised schedule for the Cabinet submission and Discussion Paper to go to Cabinet, although the respondents did not identify any evidence that they in fact did go to Cabinet. There is further evidence, in one of the confidential documents (Document 1), that this schedule was later delayed again. There is no evidence that Cabinet ever deliberated or made a decision on any of the matters referred to in Document 14. On balance, I am not satisfied that there are reasonable grounds for the claim that Document 14 reveals or tends to reveal the position of a particular Minister on a matter in Cabinet.
Mr Kelly also gave evidence that redacted "Action Item 2" in Document 21 revealed key issues that had been identified by the Minister for Planning for the Interagency Working Group to address in preparing the draft Cabinet submission and Discussion Paper. I have examined the redacted material and I accept Mr Kelly's evidence. This may not be sufficient to make the document one meeting the description in cl 2(1)(e). I do not need to decide this as I have already found that the information in another Action Item in Document 21 falls within cl 2(1) of Sch.1 and therefore all of the information in that document is Cabinet information.
Mr Fifield gave evidence that redacted parts of Document 32 (an email from the Office of Environment and Heritage to the Interagency Working Group, and Mr Fifield's response to that email), consist of direct quotes from the Discussion Paper and Mr Fifield's comments on the implications of certain proposals on RMS. Mr Fifield's evidence is that some of the redacted material reveals the position of the Minister for Planning with respect to an option contained in the Discussion Paper and submission.
Document 32 contains the same email which is Document 14, but with a reply to the email. For the reasons given in relation to Document 14, I am not satisfied that there are reasonable grounds for the claim that cl 2(1)(e) applies.

[15]

Documents claimed to reveal position taken by Minister for Roads, Maritime and Freight

The respondents submit that the following documents reveal recommendations to the Minister for Roads, Maritime and Freight as to the position to take with respect to matters in Cabinet: 1. the document identified in the original decision of RMS as "Cabinet Meeting - Cabinet 22 October 2015 - Exposure draft Coastal Management Bill No C2015-0346"; 2. the document identified in the original decision of RMS as "Ministerial Brief dated 19 November 2015" and drafts of the same (Documents 18 and 19); and 3. the document identified as "Email dated 16 November 2015 (Coastal Reforms - Exposure Draft Coastal Management Bill Cabinet Submission - RMS Views)" in the supplementary decision of RMS.
The document "Cabinet Meeting - Cabinet 22 October 2015 - Exposure draft Coastal Management Bill No C2015-0346" does not contain a direct recommendation to the Minister. It contains a recommendation made by the Chief Executive of RMS to the Secretary for Transport for NSW.
Ms Wiggins has given evidence that this is a copy of a briefing note to the Secretary, prepared as part of the consultation process during the draft Cabinet submission stage. She stated that it contains the comments and position of RMS on the substance of the draft Cabinet submission and the implications of the Cabinet submission on RMS. Ms Wiggins' evidence was that the signed briefing note was provided to the Cabinet Liaison Office in Transport for NSW, which consolidated the Transport cluster's comments into a single response, which would then have been approved by the Secretary to the Minister for Roads, Maritime and Freight in preparation for a Cabinet meeting. I accept Ms Wiggins' evidence, as far as it goes.
Mr Robinson pointed out that there was no evidence as to what the consolidated comments of the Transport cluster might have contained and what was tabled in Cabinet. He says that Ms Wiggins' evidence does not specify whether any of the material the subject of the claim was attached to or formed part of a Cabinet submission, was tabled before Cabinet, or was ever on an agenda for discussion in Cabinet.
Mr Robinson's criticisms of the respondents' evidence have merit. There is very little evidence as to what was actually placed before Cabinet. For cl 2(1)(e) to apply, the document must be one "prepared before or after Cabinet's deliberation or decision on a matter." Here, the claim appears to be that the document was prepared before Cabinet's deliberation or decision on the Cabinet submission. However, there is no evidence that the Cabinet did, in fact, deliberate or make a decision on a matter, where that matter has been the subject of a recommendation to a Minister as to the position the Minister should take.
The respondents need to establish reasonable grounds for their claim that the document was prepared before Cabinet's deliberation or decision on a matter and that the document tends to reveal the position that a Minister has been recommended to take on the matter. The respondents have not discharged the onus of establishing reasonable grounds for the claim that Cabinet did deliberate or make a decision on a matter the subject of the document. Nor have they established reasonable grounds for concluding that the document tends to reveal the position that a Minister has been recommended to take on the matter. The furthest Ms Wiggins' evidence goes is that an individual had responsibility for consolidating the comments of RMS and others into a single response which "would then have been approved" by the Secretary. There is no evidence of whether the comments of RMS were in fact consolidated and whether they were in fact approved by the Secretary. Nor is there any evidence of any recommendation made to the Minister. In my view, it is not the case that "there are matters that are sufficient to induce in a reasonable person a state of satisfaction that" the document was prepared before Cabinet's deliberation or decision on a matter and that it tends to reveal the position that the Minister for Roads, Maritime and Freight has been recommended to take on the matter in Cabinet (McKinnon, at 431 [13]).
For these reasons, I am not satisfied that there are reasonable grounds for the claim that this document tends to reveal the position the Minister for Roads, Maritime and Freight has been recommended to take on a matter in Cabinet, in circumstances where Cabinet deliberated or made a decision on the matter. Accordingly, cl 2(1)(e) does not apply.
The document "Cabinet Meeting - Cabinet 22 October 2015 - Exposure draft Coastal Management Bill No C2015-0346" is, however, identical to Document 19, except that it has handwriting on it. I have found that Document 19 is Cabinet information on the basis of cl 2(1)(d). This document, which contains the same information, is Cabinet information for the same reason.
I have already found that "Ministerial Brief dated 19 November 2015" and Documents 18 and 19 are documents within cl 2(1)(d), so it is not necessary to consider this alternative claim.
Ms Wiggins gave evidence that the document identified as "Email dated 6 November 2015 (Coastal Reforms - Exposure Draft Coastal Management Bill Cabinet Submission - RMS Views)" was provided in part to Mr Robinson, and redacted in part. Her evidence was that part of the redacted information included a comment regarding the impact of a draft cabinet submission. She also gave evidence that this email correspondence was generated in the course of preparing a briefing for the Minister.
I have viewed the information which was redacted on the basis of the Cabinet information claim. There is no reference in the document to Cabinet or a Cabinet submission. There is no direct recommendation to a Minister. Whilst I accept Ms Wiggins' evidence that the email exchanges occurred in the course of preparing a briefing for the Minister, I am not satisfied that there are reasonable grounds for the claim that the redacted information tends to reveal the position a Minister has been recommended to take in Cabinet. Accordingly, cl 2(1)(e) does not apply to this information.

[16]

Documents claimed to reveal the substance of the options or issues addressed in draft submission to Cabinet and Discussion Paper

The respondents submitted that, insofar as a document reveals the substance of the options and/or issues addressed in the draft submission to Cabinet or the Discussion Paper, it reveals or tends to reveal the position that the Minister responsible for the submission (in this case, the Minister for Planning) is considering taking, or has been recommended to take, with respect to a matter in Cabinet. The respondents submitted that information in this category included information in Documents 1, 6, 7, 12, 16, 21, 23, 24, 25, 29, 32, and 39 and in a document identified in the original decision of RMS as "Email - RE: SENSITIVE: NSW CABINET: Invitation to review an ERC submission".
It is not always the case that a document revealing the substance of the options and/or issues addressed in the draft submission to Cabinet or the Discussion Paper will reveal a Minister's position or recommended position. Mr Ian Young's evidence, which I accept, is that a draft submission is considered and approved by the relevant Minister prior to being circulated for consultation, at both the draft and final consultation stages. This is consistent with the information in the Cabinet Practice Manual. According to the respondents, the draft submission in this case was circulated for consultation. I accept the respondent's submission that information reflecting the terms of a draft submission could tend to reveal the position that a Minister has been considering and that a Minister has been recommended to take, if it can properly be characterised as revealing a "position."
The difficulty in this case is that there is no evidence that the draft submission ever went to Cabinet. I consider that cl 2(1)(e) applies only where Cabinet has in fact deliberated or made a decision about a matter. There is no evidence that the draft submission (or a final version of it) was ever deliberated upon by Cabinet or the subject of a Cabinet decision. Further, I note that Mr Young's evidence does not go so far as to state that the Discussion Paper was subject to the same process as a Cabinet submission.
I have reviewed Mr Kelly's evidence concerning the redacted information from Documents 1, 7, 12, 21 (Action item 4), and the information in Documents 6 and 16, and Mr Fifield's evidence about the redacted information in Documents 25, 29, 32, and 39 and have reviewed the information in, or redacted from, the documents themselves.
I do not accept that there are reasonable grounds for the claim that cl 2(1)(e) applies to: 1. the redacted material in Document 1. I accept Mr Kelly's evidence that one of the redacted passages in this document contains a description of an attachment to the draft Cabinet submission, which reveals the nature of sensitive information contained in the draft submission. However, having examined the document, I am not satisfied that there are reasonable grounds for the claim that this information tends to reveal the position a Minister is considering taking, or has been recommended to take, with respect to a matter in Cabinet. It does not reveal any position, recommended or otherwise. 2. Document 6. Mr Kelly's evidence, which I accept, is that this is a log of comments received during consultation with respect to the draft Cabinet submission. I accept that these comments reveal the substance of matters dealt with in the draft submission. However, I do not accept that there are reasonable grounds for the claim that this information tends to reveal the position a Minister is considering taking, or has been recommended to take, with respect to a matter in Cabinet. There is no evidence that any matter in the document was subject to a Cabinet deliberation or decision. Nor have the respondents identified the "matter" about which a Minister was recommended to take a "position" and the nature of that position. I do not consider that they have discharged their onus of demonstrating reasonable grounds for the claim. 3. The redacted material in Document 7. Mr Kelly's evidence is that the redacted material contains detailed discussion of various proposals which form the basis of the draft Discussion Paper and Cabinet submission and directly reflects the content of the draft Cabinet submission that has been lodged in e-Cabinet. Mr Kelly did not explain how he knew that this was "lodged in e-Cabinet" or what it means for a document to be "lodged in e-Cabinet". There is no evidence that the draft Cabinet submission was in fact considered by Cabinet. The respondents have not made a submission as to what "position" they claim is revealed by this material or what "matter" they say was subject to Cabinet discussion. Having reviewed the evidence and the document, I am not satisfied that there are reasonable grounds for the respondents' claim. 4. the redacted material in Action Items 3 and 5 in Document 12. I accept Mr Kelly's evidence that the material in Action Item 3 "reflects sensitive information dealt with in the Cabinet submission." However, the information in Action Items 3 and 5 does not, on the evidence available, tend to reveal the position which a Minister is considering taking, or has been recommended to take, in Cabinet. As the information in Action Items 3 and 5 is the only information in Document 12 to which access has been refused, there are no reasonable grounds for the Cabinet information claim in respect of Document 12. 5. Document 16. Mr Kelly's evidence is that this document was created to explore various operational dimensions of one of the Interagency Working Group proposals contained in the Cabinet submission and that it reveals the nature of one of the options considered and addressed in the Cabinet submission. I am not satisfied that there are reasonable grounds for the claim that Document 16 tends to reveal the position which a Minister is considering taking, or has been recommended to take, in Cabinet. 6. Redacted material in Documents 25 and 29. Mr Fifield's evidence is that the redacted material, being material redacted from an email sent by Mr Fifield, contains a discussion of the draft Discussion Paper which includes direct quotes and extracts from that document. He expresses the view that this material reveals the nature of the proposals put forward in the draft Discussion Paper which are also outlined in the submission prepared for Cabinet. Having reviewed the material, it is concerned with a query about a very particular matter. I do not accept that there are reasonable grounds for the claim that it reveals or tends to reveal a position a Minister is considering taking, or has been recommended to take, on a matter in Cabinet. The respondent bears the onus. The respondent has not clearly explained whether the submission prepared for Cabinet (referred to by Mr Fifield) is that contained in the confidential materials or demonstrated how the "proposals" Mr Fifield refers to are "outlined" in the Cabinet submission. 7. Redacted material in Document 32. Mr Fifield comments about the redacted material in Document 32 that it consists of direct quotes from the Discussion Paper and his comments on the implications of certain proposals on RMS. He says that these comments were later incorporated into the Discussion Paper and draft submission. He says, in addition, that the material redacted from Ms Williams' email reveals the position of the Minister for Planning with respect to one of the options contained in the Discussion Paper and submission. Whilst I accept this evidence, it does not establish that the information reveals or tends to reveal the position of a particular Minister. The comments of Mr Fifield do not, in my view, tend to reveal the position taken by a Minister. Whilst a small amount of the material redacted from Ms Williams' email reveals a position of the Minister for Planning, there is no evidence that Cabinet deliberated or made a decision about the matter. 8. Redacted material in Document 39. Mr Fifield gave evidence that the material redacted from Document 39 revealed information regarding the options being evaluated, which were reflected in the draft Discussion Paper. Having reviewed the document, I am not satisfied that this is the case. In any event, I find that there are no reasonable grounds for the claim under cl 2(1)(e).
I accept Mr Kelly's evidence that the redacted material in Action item 4 in Document 21 reveals sensitive issues to be addressed by the Interagency Working Group in the Cabinet Submission, and the basis on which work would proceed. However, I do not agree that there are reasonable grounds for the claim that it would tend to reveal a position a Minister is considering taking, or has been recommended to take, on a matter in Cabinet. There is a difference between revealing sensitive issues and revealing a position. As I have found that Document 21 is Cabinet information on another basis, there is a conclusive presumption against disclosure of all of the information in Document 21.
The respondents also submit that it is apparent from the face of the document identified as "Email - RE: SENSITIVE: NSW CABINET: Invitation to review an ERC submission" that it reveals the position that a Minister has been recommended to take and is considering taking on a matter in Cabinet. I have reviewed the document and I am satisfied that this is the case. However, as there is no evidence that the matter was the subject of discussion or deliberation in Cabinet (there being no evidence that the draft submission went to Cabinet), I do not consider that there are reasonable grounds for the claim.
The respondents had initially submitted that cl 2(1)(c) applied to Documents 23 and 24 but changed their position to say that cl 2(1)(e) applied, relying upon a supplementary affidavit provided by Mr Kelly. They said that these documents revealed or tended to reveal the position that the Minister for Planning was recommended to take or was considering taking.
As indicated above, Mr Fifield gave evidence that Documents 23 and 24 were drafts of the Discussion Paper.
Mr Kelly gave evidence in an affidavit filed, with leave, after the hearing, that Documents 23 and 24 were prepared in October 2015 and distributed to Interagency Working Group around the time of its first meeting in November 2015. Mr Kelly states that, having been advised that Mr Fifield described Documents 23 and 24 as drafts and evaluation of the Discussion Paper, he considers they would be better described as discussion papers prepared for the Interagency Working Group, for the purpose of guiding the group's consideration of options for coastal boundaries reform and clarifying areas of legal uncertainty where legal advice may have been necessary.
To the extent that Mr Kelly's evidence conflicts with that of Mr Fifield, I accept the evidence of Mr Kelly. Documents 23 and 24 were prepared before Mr Fifield was a representative on the Interagency Working Group. Further, Mr Kelly is from the Office of Environment and Heritage which was a lead agency in developing the reforms and he was at the first meeting of the Interagency Working Group. I have examined Documents 23 and 24 and they conform to Mr Kelly's description of them, on their face.
Documents 23 and 24 inadvertently disclosed to Mr Robinson. He submits that Document 23 is a working group paper, the purpose of which is stated at the beginning. He says there is nothing to suggest that this would reveal Cabinet deliberations or the position of the Minister. At best, he says, it represents the views of the working group. He submits that Document 24 is in the same category.
Having reviewed Documents 23 and 24, I am not satisfied that there are reasonable grounds for the claim that these documents tend to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on a matter in Cabinet. The documents are discussion papers for an interagency working group. They concern the evaluation of options. They do not contain recommendations to a Minister, nor do they represent any final position of the Interagency Working Group. The respondents have not discharged their onus of demonstrating reasonable grounds for the claim under cl 2(1)(e).

[18]

Claims of Transport for NSW

The respondents submit that a document entitled "Agenda 6.1" is a document falling within the terms of cl 2(1)(d) in that it reveals or tends to reveal Cabinet deliberations or decisions. The Tribunal has examined Agenda 6.1 and is satisfied that it was prepared after Cabinet's deliberation or decision on a matter and that it would reveal or tend to reveal information concerning those deliberations or decisions. Accordingly, it is subject to a conclusive presumption of an overriding public interest against disclosure, pursuant to s 14 and cl 2(1)(d) of Sch 1 to the GIPA Act.
Transport for NSW claims that there were reasonable grounds for classifying the redacted passages from TfNSW Documents 1-3, the attachment to TfNSW Document 2 and TfNSW Document 6 as Cabinet information on the basis that they reveal, or tend to reveal, the position that the Minister was recommended to take on a matter in Cabinet.
The redacted passage from TfNSW Documents 1-3 is the same information in each document. I accept that there were reasonable grounds for the claim of Transport for NSW that these documents would reveal, or tend to reveal, the position that a Minister was recommended to take on a matter in Cabinet. However, there is no evidence that the draft Cabinet submission, to which the redacted passage refers, was ever before Cabinet for discussion or deliberation or that, if the final version of the submission did go before Cabinet, that the matters referred to in the redacted passage were discussed or deliberated upon in Cabinet. Accordingly, I am not satisfied that there are reasonable grounds for the claim that cl 2(1)(e) applies to the information.
The attachment to TfNSW Document 2 is the same as a document held by RMS, Document 19, except it has handwriting on it. I have rejected the claim of RMS that cl 2(1)(e) applies to the document but have accepted that cl 2(1)(d) applies. Accordingly, the information in TfNSW Document 2 is Cabinet information.
I accept from an examination of TfNSW Document 6 that there were reasonable grounds for the claim that it would reveal, or tend to reveal, the position that a Minister was recommended to take on a matter in Cabinet. However, I am not satisfied that there are reasonable grounds for the claim that cl 2(1)(e) applies, as there is no evidence that the submission referred to in the redacted material went to Cabinet, or that Cabinet deliberated upon or made decisions about the matters referred to in that material.
Mr Young identified a further document responsive the Mr Robinson's access application on 14 May 2017. This document is entitled "CB - C2015-0346 - Exposure Draft Coastal Management Bill 2015". Mr Young's evidence is that it is a Cabinet submission summary, produced for the Secretary and provided to Ministerial offices prior to each Cabinet or Cabinet committee meeting. The document contains a summary of the Cabinet submission and the Transport cluster comment on that submission and, in Mr Young's view, sets out the position the Minister has been recommended to take in relation to the matter the subject of the submission by the cluster.
I have examined the document and, on the basis of Mr Young's document and having regard to the terms of the document, I am satisfied that there are reasonable grounds for the claim. There is evidence, in the case of this document, that the submission was considered by Cabinet. The position which the Minister has been recommended to take may be inferred from the document.
For these reasons, there is a conclusive presumption that there is an overriding public interest against disclosure of the information in "Agenda 6.1," the information in the attachment to TfNSW Document 2, and the information in the document entitled "CB - C2015-0346 - Exposure Draft Coastal Management Bill 2015."

[19]

Legal Professional Privilege Claim

The respondents claim that information in the following documents, which they say form part of communications between the Office of Environment and Heritage and the Crown Solicitor, is subject to legal professional privilege: 1. A letter from the Office of Environment and Heritage, on behalf of the Interagency Working Group, instructing the Crown Solicitor to provide legal advice (Document 27); 2. Background material which was prepared for the purpose of giving further context to the request for advice (Documents 26 and 28); 3. Documents providing the Crown Solicitor's legal advice (Documents 2 and 11).
The respondents also claim that information in documents forming part of communications between RMS staff and a solicitor employed by or within RMS is subject to legal professional privilege. RMS has categorised these documents as follows: 1. Requests for, and/or provision of, legal advice in relation to the Coastal Management Bill 2015; 2. Requests for, and/or provision of, legal advice in relation to a document being presented to Cabinet (the "Discussion Paper"); 3. Requests for, and/or provision of, legal advice in relation to correspondence to Mr Robinson.
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: GIPA Act, s 14(1) and Sch 1, cl 5.
The reference to "client legal privilege" in cl 5 of Sch 1 refers to the statutory formulation of privilege for which the Evidence Act provides: Colefax v Department of Education and Communities [2013] NSWADT 75 at [26]; Larsson v Office of Environment and Heritage [2014] NSWCATAD 136 at [25]; Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 at [21]-[28].
Section 118 of the Evidence Act provides as follows: "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."
"Client" is defined to include "a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service)" (Evidence Act, s 117, paragraph (a) of definition).
"Confidential communication" is defined (Evidence Act, s 117) to mean: "a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law."
The term "lawyer" includes "an Australian lawyer" (Evidence Act, s 117).
Section 131A of the Evidence Act extends the application of ss 117 and 118 to the compulsory disclosure of information, in certain situations.

[20]

Office of Environment and Heritage Advice

Mr Kelly, an Acting Principal Policy Officer at the Office of Environment and Heritage, was involved in the Interagency Working Group and instructed the Crown Solicitor to provide legal advice relevant to that Group. The Office of Environment and Heritage is an executive agency related to the Department of Planning and Environment (Government Sector Employment Act 2013 (NSW), Sch 1, Pt 2).
The letter requesting advice stated that the Office of Environment and Heritage had been nominated by the Interagency Working Group to submit the request for advice. The letter is undated but the advice appears to have been sought in late 2015.
Mr Kelly gave evidence that Documents 26-28 (the request for advice and background documents) are documents prepared by the Office of Environment and Heritage for the dominant purpose of instructing the Crown Solicitor to provide legal advice. The Office of Environment and Heritage is a "client" being "a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service)" (Evidence Act, s 117, paragraph (a) of definition). As will be seen later, I also accept that the State of New South Wales is the client, being the legal entity or "person" of which the "body" of the Office forms part. The Crown Solicitor is "an Australian lawyer" (Evidence Act, s 117).
Documents 26, 27 and 28 were inadvertently disclosed to Mr Robinson. Mr Robinson submits that Document 26 reflects the Interagency Working Group's intention to seek advice on certain matters. He also says that Document 27 is a draft (undated) letter to the Crown Solicitor and it is not known if the letter was sent. Mr Robinson also says that, on its face, Document 28 is a discussion paper relating to possible options.
I need to consider whether there are reasonable grounds for the claim of RMS that the information in Documents 26 to 28 is subject to legal professional privilege. In order to attract the privilege, the information in the document must fall within one of the paragraphs in s 118 of the Evidence Act. Mr Kelly's evidence is that all three documents are "confidential communications" as that term is defined. Documents 26 and 27 appear, on their face, to be documents which are likely to have been prepared for the purpose of seeking legal advice. Mr Kelly's evidence, which I accept, is that Document 27 (the letter) was sent on 2 December 2015. Document 28 appears, on its face, to be a discussion paper, as Mr Robinson submits. However, I accept Mr Kelly's evidence that it was attached to the letter of instructions to the Crown Solicitor and that it was prepared for the purpose of giving further context to the request for advice. Mr Robinson did not challenge the evidence of Mr Kelly that this was the case. As Mr Kelly instructed the Crown Solicitor to provide the advice, I find that there are reasonable grounds for the claim that all three documents are confidential communications between the Office of Environment and Heritage and the Crown Solicitor prepared for the dominant purpose of the Crown Solicitor providing legal advice.
Documents 2 and 11 are, on their face, legal advice provided by the Crown Solicitor to the Office of Environment and Heritage. I accept Mr Kelly's evidence that these documents are "confidential communications" as that term is defined.
Accordingly, I find that, subject to the question of waiver, documents 2, 11 and 26-28 (and the information they contain) are protected by legal professional privilege.

[21]

RMS communications

As indicated above, RMS claims that certain communications between solicitors employed in its legal branch and RMS staff are privileged. The information subject to this claim is contained in Documents 31, 35, 36, and 37.
Mr Robinson submitted that some of emails to which access was granted suggest that some of the documents prepared by Legal Branch are transactional or correspondence, and not legal advice.
Ms Sally Bock is Legal Counsel, Environment, Planning and Property at RMS. She provided unchallenged evidence, which I accept, that: 1. Ms Bock holds a current NSW practising certificate; 2. All Legal Counsel and lawyers within Legal Branch are employed in the Transport Service, established under Part 7A of the Transport Administration Act and deployed to RMS; 3. It is her understanding that all persons with the title of legal counsel or lawyer in Legal Branch hold current NSW practising certificates; 4. Ms Bock provides legal advice to the Environment Branch in RMS on draft policies and the interpretation of legislation; 5. RMS Legal Branch has confidentiality measures in place, such as only Legal Branch has access to its electronic files and it is possible to only permit access by nominated Legal Branch officers.
RMS did not identify the entity it said was the "client" for the purposes of the advice provided by Ms Bock. It submitted only that "s 117(1) confirms that a 'client' may include an 'employer of a lawyer' if the employer is the State, or a body established by a law of the State".
It is the Government of New South Wales which employs persons in the Transport Service to enable RMS to exercise its functions (Transport Administration Act, s 68C(1)). It is therefore the Government of New South Wales (or perhaps the State) and not RMS which is the employer of Ms Bock and other solicitors in the Transport Service. Thus, under s 117(1) of the Evidence Act, the Government of New South Wales is a client of the solicitors in the Legal Branch. A "client" also includes "an employee or agent of a client" (s 117(1)). It is possible that RMS is an "agent" of the Government of New South Wales, but RMS has not contended that this is the case. A "client" may also be "a person or body who engages a lawyer to provide legal services" (Evidence Act, s 117(1)). It is possible that RMS "engages" the solicitors in the Legal Branch to provide legal services, but again there have been no submissions to this effect.
Ultimately, it is not necessary to decide these questions because I am satisfied that RMS is the "client" of the solicitors in the Legal Branch in the ordinary sense of that term. The term is defined inclusively in s 117(1); that is, it has its natural meaning, but also includes the meanings in the paragraphs which follow. I am satisfied that, in a context in which the government established an in-house arrangement for the provision of legal services to the staff of the RMS (and other agencies), the RMS is the "client" of the solicitors in the Legal Branch within the ordinary meaning of that term.
As RMS acknowledged, the lawyer must have the relevant degree of independence in respect of the advice being given. The Appeal Panel observed in AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [86], that "[i]n circumstances where it has not been established that an in-house lawyer's advice is independent, there is a real question as to whether the document can properly be said to contain 'legal advice' and as to whether the author or recipient 'was under an express or implied obligation not to disclose its contents' within s 117 (see CCB v Department of Education and Communities [2015] NSWCATAD 145 at [71]-[77])."
I am satisfied that Ms Bock and other lawyers in the Legal Branch have the requisite degree of independence. They are located separately from other RMS staff; they have confidentiality measures in place; they all have practising certificates; they report to the General Counsel; and their functions are of a legal character. Further, it was not contended that Ms Bock or any other solicitor lacked independence.
The advice must be "legal advice." In IOOF Holdings Ltd v Maurice Blackburn Pty Ltd [2016] VSC 311, Elliott J said at 47, in the context of a discussion of client legal privilege under the Evidence Act 2008 (Vic): "With respect to advice privilege, in considering whether a communication is for the purposes of legal advice, the purposes must be construed broadly. Although it does not extend to pure commercial advice, legal advice, in this context, includes any advice as to what should prudently and sensibly be done in the particular legal circumstances in which the client finds itself." (footnotes omitted)
Elliott J relied upon the Court of Appeal's comments in WorkCover Authority of NSW, General Manager v Law Society (NSW) (2006) 65 NSWLR 502; [2006] NSWCA 84, a case considering legal professional privilege at common law. In that case, McColl JA, with whom Handley and Hodgson JJA agreed, quoted with approval (at 521 [77]) the words of Taylor LJ in Balabel v Air India [1988] Ch 317 at [330]: "[L]egal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context."
Having reviewed the emails which form Document 31 and which are described as "emails to and from Legal Branch seeking or providing advice in relation to the draft Bill and SEPP", I find, subject to what follows, that these are confidential communications made between the client and a lawyer for the dominant purpose of the lawyer providing legal advice to the client. The information in those emails accordingly attracts s 118 of the Evidence Act and there is an overriding public interest against disclosure of the information (GIPA Act, s 14(1), Sch 1, cl 5).
The email chain which was forwarded to Sally Bock at 7.42pm on 11 June 2016 (Document 31, pp 59-65) is not self-evidently forwarded to her for the dominant purpose of her providing legal advice. The respondent has not, in my view, discharged its onus of establishing that the legal professional privilege consideration against disclosure applies in relation to this information. Even if the email chain was forwarded to Ms Bock for this dominant purpose, the entire email chain would not be subject to privilege. Clause 5 of Sch 1 to the GIPA Act refers to "information" and so implicitly relies upon s 131A of the Evidence Act (see Colefax v Department of Education and Communities [2013] NSWADT 75 and Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 at [33]). Even if part of the information consists of "a confidential communication made between the client and a lawyer" for the dominant purpose of the lawyer providing legal advice (contrary to my view), this is not true of the remainder of the information.
I find that the information in the email chain at pp 59-65 of Document 31 is not information that would be privileged from production in legal proceedings and so is not subject to the consideration in cl 5(1) of Sch 1 to the GIPA Act.
The advice from the Crown Solicitor and emails concerning that advice which appear at pp 41-51 of Document 31 fulfil the requirements for "advice privilege." However, there is a question of whether that privilege has been waived. This is because the disclosure of the advice to RMS is capable of being a waiver of privilege within s 122 of the Evidence Act. This is a matter to which I return below.
I am satisfied that the information which has been redacted in documents 35, 36, and 37 is subject to legal professional privilege under s 118 of the Evidence Act. Accordingly, there is an overriding public interest against disclosure of this information pursuant to GIPA Act, s 14(1) and Sch 1, cl 5.

[23]

Was privilege waived by inadvertent disclosure?

As indicated above, Mr Robinson was inadvertently provided with a document entitled "NSW Coastal Boundaries Interagency Working Group: Request for Crown Solicitor's Office advice on coastal boundary reform: Background Paper" (Document 26). He was also inadvertently provided with other documents which describe advice which the Crown Solicitor provided to the Office of Environment and Heritage. A document headed "Coastal Boundaries Interagency Working Group: Summary of Potential Implementation Mechanisms" ("Summary Document") refers to legal advice requested by the Office of Environment and Heritage and provided by the Crown Solicitor in 2013. It also sets out legal issues which it foreshadows may be the subject of a request for further advice. The document is undated.
The legal advice referred to in the Summary Document is different from the advice in Documents 2 and 11. It is also different from an advice from the Crown Solicitor attached to an email to RMS (see Document 31, pp 45-51 of 66). However, even if it did refer to the advice in any of those documents or in some way disclose the advice, I do not think that disclosure to Mr Robinson would waive privilege.
Mr Robinson contends that, by inadvertently providing him with access to documents describing the legal advice sought and obtained from the Crown Solicitor (through its agent, the Crown Solicitor), privilege in that advice was waived (he does not specify by whom).
Mr Robinson relies upon Mann v Carnell (1999) 201 CLR 1 at 13 [28]-[29], where Gleeson CJ, Gaudron, Gummow and Callinan JJ discuss waiver of legal professional privilege at common law. In particular, their Honours state at [28] that it "is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege."
The applicable test for waiver of privilege is, however, that in s 122 of the Evidence Act: Gold and Copper Resource Pty Limited v NSW Trade and Investment [2016] NSWCATAD 267 at [43]. This must follow from the proposition, referred to above, that cl 5 of Sch 1 to the GIPA Act refers to the "client legal privilege" of the Evidence Act.
The test in s 122(2) contains a very similar test for waiver to that at common law. It is whether "the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118". "Party" is defined to include an agent of the client (Evidence Act, s 117) so would include solicitors in the Crown Solicitor's Office if acting on the client's behalf. Section 122(3) then provides: "Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party."
In this case, the substance of the evidence (or information) was not "knowingly …. disclosed" within s 122(3)(a); nor was there any express or implied consent to its disclosure within s 122(3)(b). Clearly, the notice of decision indicated that RMS did not consent to the disclosure of the information. The question is then whether the "client" or the Crown Solicitor has "acted in a way that is inconsistent with … objecting to the adducing of the evidence because it would result in a disclosure of" a confidential communication between the Office of Environment and Heritage and the Crown Solicitor.
Mr Robinson sought to rely upon Bendigo and Adelaide Bank Ltd v Stamatis [2013] NSWSC 248, a case concerning s 122 of the Evidence Act. In that case, Harrison AsJ considered a claim that privilege had not been waived by a bank in circumstances where the bank claimed that information had been inadvertently disclosed by the bank's legal representatives. The bank sought orders restraining the defendants from using or divulging any of the privileged documents. Mr Robinson sought to rely upon his Honour's comment (at [50]) that whether a court would intervene, where privileged information had been inadvertently disclosed, "depends upon whether a reasonable solicitor in the position of the defendants' solicitor should have realised that the documents had been disclosed by mistake". This comment was made in the context of considering whether the court should grant equitable relief restraining another party from using the divulged material. It is not necessary to consider whether the principle was limited to the context of equitable relief, however, because later the same year the High Court set out the applicable principles governing waiver and inadvertent disclosure.
In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303, documents had been inadvertently disclosed during discovery. The High Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) said, in the context of discovery, "where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of that mistake and order the return of the document, if the party receiving the documents refuses to do so" (at 319 [45]).
In Head Quarters (WA) Pty Ltd (Trustee) v Mubarakai [2016] FCA 1254 at [1], Jagot J observed: "The principle expressed in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303; (2013) 250 CLR 303 (Expense Reduction) is not confined to the context of discovery. The principle is that if a reasonable person would have realised that the disclosure of a document was inadvertent and by error then legal professional privilege is not waived and the Court should ordinarily permit the correction of the mistaken disclosure."
Applying that principle in the circumstances of this case, I am satisfied that a reasonable person would have realised that the disclosure of the email attachments was inadvertent and by error. This is because the attachments did not appear in the pdf itself (without clicking on the attachments) and the supplementary decision stated that access to those email attachments was denied. Accordingly, I find that, to the extent this is relevant, neither the Crown Solicitor nor RMS acted in a way that was inconsistent with objecting to the adducing of the evidence. There was no waiver of privilege, within s 122 of the Evidence Act, by way of inadvertent disclosure.

[24]

Disclosure by Office of Environment and Heritage to RMS

The reason there is a question as to whether the conduct of the Crown Solicitor or RMS is relevant is that it was not contended by the respondent at the hearing or in submissions that RMS was the client for the purposes of Div 1 of Pt 3.10 of the Evidence Act, and in particular for the purposes of s 122. On the contrary, RMS submitted that it "was the OEH that instructed the Crown Solicitor, and to whom the privilege belongs," but nevertheless made submissions concerning the conduct of RMS in relation to the inadvertent disclosure, as if RMS were the client. The respondent did not attempt, in its initial submissions, to explain the effect of providing the documents to RMS. Nor did it deal with this question in relation to the 2013 advice or advices referred to in the documents inadvertently disclosed to Mr Robinson.
After I had reserved my decision, it became apparent that there was an issue as to whether the disclosure of certain information by the Office of Environment and Heritage or another department to RMS meant that it had acted inconsistently with maintaining privilege, within s 122 of the Evidence Act. That information is the information within Documents 2, 11, 26-28 and pp 41-51 of Document 31. Accordingly, at my request, the Registrar wrote to the parties inviting submissions on the issue.
Mr Robinson submitted that the failure of the Office of Environment and Heritage to claim privilege at the commencement of the proceedings meant that there was an implicit waiver of the privilege, because this constituted an abandonment of the claim for protection (relying upon Re Optimisation Australia Pty Ltd [2016] NSWSC 1581 at [45]). I do not accept this submission. In proceedings under the GIPA Act, it is for the agency which holds the information to indicate whether it relies upon cl 5 of Sch 1. The person who or which holds the privilege may or may not be aware of the proceedings. A failure of the person who holds the privilege to formally make a claim of privilege, where that person is not a party to the proceedings, would rarely, if ever, amount to a waiver of privilege in proceedings under the GIPA Act.
RMS submitted that the Office of Environment and Heritage had not acted in a manner inconsistent with maintaining its claim of privilege over the documents. This was for the following reasons: 1. there was no evidence that the documents had been knowingly and voluntarily shared, other than with employees of the State of New South Wales, which is the relevant "client" for the purposes of the Evidence Act; and 2. the manner in which the documents have been shared was not otherwise inconsistent with maintaining the confidentiality of the communications.
I accept that the evidence establishes the second of these propositions.
Mr Robinson submits that the handling of the documents was inconsistent with the maintenance of confidentiality, because they were sent as attachments to emails. Mr Robinson relies upon Re Optimisation Australia Pty Ltd [2016] NSWSC 1581, where Brereton J held that, in the circumstances of that case, the sending of material by email was inconsistent with the maintenance of confidentiality. The case is not authority for the proposition that emailing a document will always be so inconsistent. Whilst the use of email to send these documents may have been inconsistent with the Cabinet Practice Manual, as Mr Robinson claims, I do not consider that it was acting inconsistently with the maintenance of confidentiality within s 122 of the Evidence Act. The evidence establishes that the documents were only circulated to staff members working on the coastal reforms and to members of the Interagency Working Group and that those persons were instructed to keep the material confidential. To the extent that the members of the Interagency Working Group were part of the legal entity that is the State of New South Wales, this was not inconsistent with maintaining the confidentiality of the communications.
The first proposition relied upon by the Crown is more problematic. It may be accepted that the State of New South Wales was a "client" when the Office of Environment and Heritage sought legal advice (even though RMS initially contended that the Office of Environment and Heritage was the client). However, RMS is, at least on one view, a separate "person" for the purposes of s 122, being a statutory corporation. Section 122(3)(a) deems a client to have acted inconsistently with maintaining the privilege claim if "the client … knowingly and voluntarily disclosed the substance of the evidence to another person".
RMS submits that the disclosure of privileged documents to it is not a disclosure "to another person" for the purposes of s 122(3)(a); rather, it says that "the documents have been shared with other employees of the relevant 'client,' namely the Crown in right of New South Wales." RMS argues that, although RMS is a corporation, it is also a government agency (Transport Administration Act, s 46(2)). By s 13A(1) of the Interpretation Act, RMS thereby "has the status, privileges and immunities of the Crown." RMS submits, and I accept, that officers of RMS are also employed in the service of the Crown. They are employed by the Government of New South Wales, under Part 7A of the Transport Administration Act, in the Transport Service to enable RMS to perform its functions (see, for example, s 68C(1)(c)).
RMS submits that this reasoning, that the documents have only been shared with employees of the Crown, is consistent with the High Court's reasoning in Mann v Carnell (1999) 201 CLR 1. Acknowledging that this case concerned common law privilege, RMS submitted that it was nevertheless instructive that the Court found that the privilege in that case was that of the body politic and that it did "less than justice" to describe the disclosure of advice by the Chief Minister to a Member of Parliament as disclosure to a third party (Gleeson CJ, Gaudron, Gummow and Callinan JJ at 14-15 [33]).
The reasoning in Mann v Carnell is, of course, instructive. However, as RMS acknowledges, the statutory test is different from the common law test. Section 122(3) of the Evidence Act is a deeming provision, which effectively deems privilege to have been waived if the client "knowingly and voluntarily disclosed the substance of the evidence to another person". Further, the circumstances here are different from those in Mann v Carnell. Whilst in Mann v Carnell, the Chief Minister and Member of Parliament were both part of the body politic, RMS has been established, by Act of Parliament, as a statutory corporation. It is a separate legal entity.
RMS seeks to rely upon my decision in Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 in support of its position. In that case, I found that the provision of advice from a Departmental legal officer to the Deputy Premier was to the State as client. Again, this decision does not address the issue of whether provision of advice to a statutory corporation attracts the operation of s 122(3) of the Evidence Act.
RMS also relies upon New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 261 ALR 311. In that case, the court found that legal professional privilege, at common law, was not waived in circumstances where the State shared advice with third parties which were part of a working group established to draft instructions on new legislation. While I accept that, if this matter involved common law legal professional privilege, it is unlikely that the privilege would be waived by providing advice to RMS, Betfair does not deal with the deeming provision in s 122(3) of the Evidence Act.
More instructive is the case of State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, in which the Court of Appeal considered a claim of public interest immunity made by the State of New South Wales. The Public Transport Ticketing Corporation discovered documents in litigation, some of which were subject to the State's claim of public interest immunity. The Public Transport Ticketing Corporation did not itself claim public interest immunity. There was a question as to whether public interest immunity claim was to be determined at common law, or pursuant to s 130 of the Evidence Act.
The State argued that s 131A of the Evidence Act was not engaged, because the State was not a "person." Section 131A extends the application of Part 3.10 of the Evidence Act to apply to discovery and other pre-trial processes where "a person is required by a disclosure requirement to give information, or to produce a document" and certain criteria are met. The State submitted first, that the Public Transport Ticketing Corporation was not the State, although it was a statutory body representing and having the status of the Crown and a NSW Government agency. It also argued that the State (or the Crown) cannot be described as "a person" as a matter of statutory interpretation. The other party to the litigation submitted that, at the relevant time, the Public Transport Ticketing Corporation was a statutory body representing the Crown, meaning that the State and the Public Transport Ticketing Corporation were the same person.
Allsop P (Hodgson JA and Sackville AJA agreeing) dealt with this argument, relevantly, as follows: [30] That the PTTC has the status of the Crown does not deny its character as a corporation constituted by the TA Act, s 35R. One aspect of that character is its separateness as a corporate personality. … For the purposes of the Australian Constitution , s 75(iv) or s 114 or of the Judiciary Act 1903 (Cth), s 38, the PTTC may well be the State: State Bank of New South Wales v Commonwealth Savings Bank of Australia [1986] HCA 62 ; 161 CLR 639; Deputy Cmr of Taxation v State Bank of New South Wales [1992] HCA 6 ; 174 CLR 219; Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44 ; 119 CLR 334. Such provisions are not to be defeated or avoided by the precise corporate form in which the State conducts its affairs. That, however, does not mean that the PTTC does not have a separate personality as a corporation, distinct from the polity of the State of New South Wales: Commonwealth v Silverton Ltd (1997) 130 ACTR 1 at 13-18; Ex parte Workers' Compensation Board of Queensland [1983] 1 Qd R 450. In the last two cases, such separateness of the entity permitted agencies of the one polity to sue each other. … [32] The issue here is one of the separateness of juristic person between the body politic of New South Wales and a corporation the creature of statute. The TA Act says the PTTC is a corporation; hence it is a distinct entity. The 2010 Act continued it as such. The PTTC (albeit a corporation) is "a person … required by a disclosure requirement [as defined in s 131A(2)] … to produce a document". However, it does not "object to … providing that document". Its carefully drafted position does not amount to such objection. The State objects. Assuming for the moment that the State (being the body politic of New South Wales) is "a person" for the purposes of s 131A(1)(a) (which, for the reasons set out below, it is), it is not a person who is required, by pre-trial discovery as the relevant disclosure requirement for s 131A(2), to produce the documents. It is for this purpose a separate entity from the PTTC, although the PTTC represents the Crown and for the purposes of the Judiciary Act and Constitution may well be the State. That does not make the corporation created by s 35R and the body politic the same "person". On this basis, the Evidence Act , ss 130 and 131A are not engaged.
Allsop P then provided reasons, at [33]-[39], for his conclusion that the State was a "person" for the purposes of s 131A of the Evidence Act.
It is clear from his Honour's judgment that the State and a statutory corporation representing the Crown are to be treated as separate persons for the purposes of s 131A of the Evidence Act. This is so, notwithstanding that the statutory corporation in question "has the status, privileges and immunities of the Crown." That being the case, it must follow that the State is also a "person" for the purpose of s 122(3) of the Evidence Act, one of the provisions to which s 131A applies, and that the RMS is also a separate "person" for the purpose of that provision.
The provision of a confidential communication by the State (as client) to RMS would thus constitute the knowing and voluntary disclosure of the substance of the evidence (or information, as per s 131A) to another person, within s 122(3) of the Evidence Act. This analysis is not changed, in my view, by the circumstance that the employee attending the Interagency Working Group on behalf of RMS was employed by the Government of New South Wales. The employee attended as the RMS representative on the Group.
Whilst this analysis leads to the conclusion that the Office of Environment and Heritage or the State has lost privilege in the documents, I consider that there is another way in which the privilege issue may be analysed in respect of Documents 2, 11, and 26-28.
The definition of "client" in s 117 of the Evidence Act contemplates that there may be more than one "client" in any confidential communication. Document 27 is a request for advice from the Office of Environment and Heritage to the Crown Solicitor. It states that that Office "has been nominated by the [Interagency Working Group] to submit this formal request for advice" and provides other information about the deliberations of that group. I consider that the Interagency Working Group is also a "client" as that term is defined in s 117, either according to the general meaning of that term, or as a "body who engages a lawyer to provide legal services."
Document 26 is a request for advice which explicitly describes the Interagency Working Group as requiring the Crown Solicitor's advice. This document, and Document 28, were sent to the Crown Solicitor as part of the request for advice. In all of these communications, the Interagency Working Group is a client of the Crown Solicitor for the purposes of s 118 of the Evidence Act.
Document 11 appears to be the advice provided in response to the request for advice in Document 27. Document 2 is a further advice which states, in paragraph 2.4, that the Interagency Working Group is seeking the Crown Solicitor's further advice. The Interagency Working Group is thus a client for the purposes of Documents 2 and 11.
I find that the provision of the communications constituted by Documents 2, 11, and 26 to 28, to RMS for the purposes of its participation in the Interagency Working Group is not properly characterised as "the client … knowingly and voluntarily disclos[ing] the substance of the [information] to another person" within s 122(3)(a). This is because RMS formed part of the "client" being the Interagency Working Group. Nor was the provision of the communications to RMS inconsistent with the client objecting to the disclosure of the information, for the same reason.
The advice from the Crown Solicitor's Office which is attached to an email (pp 41-51 of Document 31), is in a different position. This advice was sought before the Interagency Working Group came into existence. Disclosure of the advice by a government department (the State) to RMS is a knowing and voluntary disclosure of the information to another person, within s 122(3)(a). Accordingly, by operation of s 122(2) of the Evidence Act, read with s 131A, Div 1 of Pt 3.10 does not prevent the disclosure of the information. It follows that there is no overriding public interest against disclosure of this information.
Mr Robinson has also submitted that there has been a disclosure of information by the Interagency Working Group to Angus Gordon and Bruce Tom, two members of the Coastal Expert Panel who attended meetings and are not part of that group. This submission was not developed in any detail. I do not consider that the evidence establishes that there was any such disclosure. If there was, it appears that these individuals were part of the State of New South Wales. I do not consider that this attracts the operation of s 122 of the Evidence Act.

[25]

Whether certain decisions should be remitted to RMS

RMS submitted that, in the event that the Tribunal determined that it had not properly classified information as Cabinet information or subject to legal professional privilege, the appropriate course would be for the Tribunal to remit the matter to it pursuant to s 65 of the Administrative Decisions Review Act. It could then consider whether the material might be released, or whether it is otherwise subject to an overriding public interest against disclosure, applying the public interest test in s 13 of the GIPA Act.
Where the Tribunal has conducted a review, it generally seeks to finalise that review at the time of its decision. This is consistent with an object of the Civil and Administrative Tribunal Act 2013 (NSW), to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and with the guiding principle in s 36(1) of that Act. The power to remit a matter is generally not exercised so as to enable a respondent to make another decision, if the Tribunal finds that the respondent's first decision is not justified.
The appropriate course, where an agency anticipates that the primary grounds on which it relies may not succeed, is to make submissions as to the application of alternative grounds. In this case, had the respondent wished to rely upon considerations in the table to s 14, it could have done so, as an alternative basis to its primary submissions that the information was Cabinet information and/or subject to legal professional privilege.
I do not consider that it would be appropriate, after a full hearing of the matter at which the parties have had multiple opportunities to make submissions, to remit the matter to RMS now. RMS has the onus of persuading the Tribunal that its decision was justified (or that there were reasonable grounds for its Cabinet information claims) and has not discharged that onus in relation to some of the information the subject of Mr Robinson's access application. It follows that Mr Robinson should be granted access to that information.

[26]

ORDERS

In proceedings 2016/378398: 1. The implicit decision of Transport for NSW that it does not hold any more information than that it has identified is affirmed. 2. The decision of Transport for NSW to refuse access to the information in the document described as "Agenda 6.1," the information in the document described by Transport for NSW as Document 2, and the information in the document entitled "CB - C2015-0346 - Exposure Draft Coastal Management Bill 2015" is affirmed. 3. The decision of Transport for NSW to refuse access to the information in the redacted passages from the documents identified by Transport for NSW as Documents 1-3 and the information in the document identified by Transport for NSW as Document 6 is set aside and, in substitution for that decision, Transport for NSW is to provide the applicant with access to that information within 30 days of the date of this decision.
In proceedings 2016/378399: 1. The implicit decision of Roads and Maritime Services that it does not hold any more information than that it has identified is affirmed. 2. The decision to refuse access to the following information is affirmed: 1. Information in the documents referred to in the Supplementary Decision of the respondent as Documents 2, 3, 4, 5, 8, 11, 13, 15, 17, 18, 19, 21, 22, 26, 27, and 28; 2. Information in pages 1-40 and 53-58 of the document referred to in the Supplementary Decision of the respondent as Document 31; 3. Information in the documents described in the Original Decision of the respondent as "Ministerial Brief Dated 19 November 2015" and "Cabinet Meeting - Cabinet 22 October 2015 - Exposure draft Coastal Management Bill No C2015-0346." 1. The decision to refuse access to the following information is set aside and, in substitution for that decision, Roads and Maritime Services is to provide the applicant with access to the information within 30 days of the date of this decision: 1. Information in documents referred to in the Supplementary Decision of the respondent as Documents 6, 14, 16, 23, 24, 25, 29, 39; 2. All redacted information in the documents referred to in the Supplementary Decision of the respondent as Documents 1, 7, 12, 14, 32; 3. All information in the document entitled "Email dated 6 November 2015 (Coastal Reforms - Exposure Draft Coastal Management Bill Cabinet Submission - RMS Views)"; 4. Information in the document identified as "Email - RE: SENSITIVE: NSW CABINET: Invitation to review an ERC submission"; 5. Information in pp 41-51 and pp 59-65 of the document referred to in the Supplementary Decision of the respondent as Document 31; and 6. Information in those parts of the documents referred to in the Supplementary Decision of the respondent as Documents 35, 36 and 37 which have been redacted on the basis that the information is subject to legal professional privilege.

Legislation Cited (14)

Coastal Management Act 2017(NSW)

Freedom of Information Act 1989(NSW)

Crown (Interpretation Act 1987(NSW)

Department of Planning and Environment (Government Sector Employment Act 2013(NSW)

Administrative Decisions Review Act 1997(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Evidence Act 1995(NSW)

Evidence Act 2008(Vic)

Freedom of Information Act 1982(Cth)

Government Information (Public Access) Act 2009(NSW)

Government Sector Employment Act 2013(NSW)

Interpretation Act 1987(NSW)

Transport Administration Act 1988(NSW)

Judiciary Act 1903(Cth)

Cases Cited (31)

e to conduct of review by Tribunal - Whether inadvertent disclosure constituted decision to grant access to information - Cabinet information claim - Whether reasonable grounds for claim - Whether certain documents prepared for the purpose of submission to Cabinet - Whether certain documents would reveal or tend to reveal information concerning any of Cabinet deliberations or decisions - Whether certain documents reveal or tend to reveal the position of a particular Minister on a matter in Cabinet - Whether Tribunal may decide to provide access to part of a document containing Cabinet information but not to the remainder of the document - Legal professional privilege - Whether confidential communications prepared for dominant purpose of lawyer providing legal advice to a client - Whether privilege waived by inadvertent disclosure to applicant - Applicable principles - Whether privilege waived by the provision of advice by a Department to a statutory corporation - Whether RMS is client of in-house solicitor providing advice - Where legal staff in RMS are employed by the Government of NSW - Meaning of "client" in the Evidence Act. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Coastal Management Act 2017 (NSW) Evidence Act 1995 (NSW) Evidence Act 2008 (Vic) Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 (NSW) (repealed) Government Information (Public Access) Act 2009 (NSW) Government Sector Employment Act 2013 (NSW) Interpretation Act 1987 (NSW) Transport Administration Act 1988 (NSW) Cases Cited: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 Allchin v Police Integrity Commission [2017] NSWCATAD 219 Balabel v Air India [1988] Ch 317 Beer v Commissioner of Police, NSW Police Force [2013] NSWADT 243 Bendigo and Adelaide Bank Ltd v Stamatis [2013] NSWSC 248 CCB v Department of Education and Communities [2015] NSWCATAD 145 Colefax v Department of Education and Communities [2013] NSWADT 75 D'Adam v New South Wales Treasury [2014] NSWCATAD 68 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 FA v Commissioner of Police, New South Wales Police Service [2003] NSWADT 196 Gold and Copper Resource Pty Limited v NSW Trade and Investment [2016] NSWCATAD 267 Head Quarters (WA) Pty Ltd (Trustee) v Mubarakai [2016] FCA 1254 IOOF Holdings Ltd v Maurice Blackburn Pty Ltd [2016] VSC 311 Larsson v Office of Environment and Heritage [2014] NSWCATAD 136 Mann v Carnell (1999) 201 CLR 1 McClymont v Department of Family and Community Services [2017] NSWCATAD 202 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 Mino v Legal Aid NSW [2015] NSWCATAD 245 New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 261 ALR 311 Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441 Re Optimisation Australia Pty Ltd [2016] NSWSC 1581 Re Robinson and Department of Foreign Affairs (1986) 11 ALN N48 Retain Beacon Hill High School Committee Inc v Landcom [2006] NSWADT 108 Searle v Transport for NSW [2017] NSWCATAD 256 Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11 Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 Watson v NSW Trustee and Guardian (No.2) [2016] NSWCATAD 19 WorkCover Authority of NSW, General Manager v Law Society (NSW) (2006) 65 NSWLR 502; [2006] NSWCA 84 Category: Principal judgment Parties: In proceedings 2016/378398:

Cited By (8)

Atkinson v Department of Premier and Cabinet and the Premier of New South Wales

Bellamy v Transport for NSW

Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet

Miskelly v Roads and Maritime Services

Park v Transport for NSW

Shoebridge v Commissioner of Police, NSW Police Force

Transport for NSW & Ors v Robinson

Vogel v Secretary, Department of Education