Social Justice Advocates of the Sapphire Coast Incorporated v Bega Valley Shire Council

Confidential material

1. The Respondent also provided a number of confidential documents to the Tribunal including a copy of the relevant document sought to be disclosed (the document), a chain of emails, a further email and a memorandum which was confidential attachment 1 to the council meeting paper of 13 December.

Jurisdiction

1. The Tribunal has jurisdiction to review 'an administratively reviewable decision': s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 100 of the GIPA Act provides that applications may be made to the Tribunal for administrative review of 'reviewable decisions' made by an agency. A decision to refuse to provide access to information in response to an access application is a reviewable decision (s 80 of the GIPA Act). I am satisfied the Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

1. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

Applicant's case

1. The Applicant contends the document should be disclosed because legal professional privilege has been waived by the conduct of the Respondent and no longer applies to the document.

Respondent's case

1. The Respondent acknowledged it bears the burden of establishing its decision is justified: see s 105 of the GIPA Act.
2. The Respondent contends that there is a conclusive overriding public interest against disclosure of the document, relying on s 14 and cl 5 of Sch 1 to the GIPA Act because legal professional privilege applies to the document regardless of the original grounds for refusal. The Respondent now submits the requisite client-lawyer relationship existed, the dominant purpose of the creation of the document was for a lawyer to provide legal advice and the document was intended to be kept confidential.

Law

1. Section 3 of the GIPA Act sets out the object of the Act: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. The GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure and public interest considerations in favour of disclosure are not limited in scope: see ss 5 and 12 of the GIPA Act.
3. There is an overriding public interest against disclosure of information if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: s 13 of the GIPA Act.
4. It is conclusively presumed that there is an overriding public interest against disclosure of the information specified in Sch 1 to the GIPA Act: s 14(1) of the GIPA Act. The effect of a conclusive presumption of an overriding public interest against disclosure is that the Tribunal is not required to perform the public interest test of balancing considerations under s 13 of the GIPA Act: see Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41] (Yee).
5. Clause 5 of Sch 1 to the GIPA Act provides: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
6. The Evidence Act 1995 (the Evidence Act) provides for two categories of legal professional privilege: legal advice privilege (s 118) and litigation privilege (s 119). Section 118 of the Evidence Act provides the legal advice privilege will apply where: 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.
7. The Evidence Act also defines client to include a person or body who engages a lawyer to provide legal services or who employs a lawyer as well as an employee or agent of a client. The Evidence Act defines 'confidential document' to mean a document prepared in circumstances where there was an obligation on the author or recipient not to disclose its contents; and a 'confidential communication' to apply to communication occurring in the same circumstances.
8. The Evidence Act also provides that privilege will be lost where: 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if 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, 119 or 120. (3) 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.
9. While the statutory formulation of privilege is usually applied in matters such as this, as the Tribunal has previously observed, the Evidence Act is not a code and common law principles of privilege remain relevant, including when interpreting the meaning and operation of words and terms not defined in the Evidence Act: see Jackson v University of New South Wales [2019] NSWCATAD 224 (at [96]).
10. Further, while the Evidence Act uses the term 'client legal privilege', it is understood to be interchangeable with the term 'legal professional privilege': Moore v Southern NSW Local Health District [2024] NSWCATAD 72 at [49].

Consideration

1. If legal professional privilege applies to the document there will be a conclusive presumption of an overriding public interest against disclosure and the Tribunal is not then required to perform the public interest test: see Yee.
2. The first issue for determination is therefore whether legal professional privilege applies to the document.
3. As set out by the Appeal Panel in AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [25]: … it is required to establish the factual matters necessary to found a claim under s 118 or s 119 of the Evidence Act, including that relevant provisions are a client and a lawyer, that a document or communication is confidential and that the dominant purpose for which a communication was made or a document was prepared is one contemplated by the provision relied upon.
4. Therefore, in order for legal professional privilege to apply to the document, each element of the privilege must be satisfied. The essential elements of legal professional privilege are: 1. the existence of a client and lawyer relationship; and 2. the confidential nature of the relevant document; and 3. the relevant document was brought into existence for the dominant purpose of either: 1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or 2. for use in existing or anticipated litigation.

Does Legal Professional Privilege apply to the document?

1. The evidence of Ms Bolton, a member of staff of the Respondent, was that the document was prepared by lawyers engaged by the Respondent, at the request of another member of staff of the Respondent, to provide a legal opinion in relation to development and relevant enforcement options the Respondent could take to assist the Respondent in determining a development application submitted by the Applicant and any future applications for moveable dwellings.
2. On the material before the Tribunal, I am satisfied a lawyer client relationship existed between the authors of the document and the Respondent.
3. The term 'dominant purpose' is not defined in the Evidence Act but has been held to mean one that predominates over other purposes - the prevailing or paramount purpose: Priest v State of New South Wales [2006] NSWSC 1281 at [26]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357.
4. Legal professional privilege extends to documents used to assist a lawyer to give advice and a client to receive it: Trade Practices Commission v Sterling (1979) 36 FLR 244 at [4].
5. On the material before the Tribunal and my inspection of the document I am satisfied the document was prepared for the Respondent's engaged lawyers to provide legal advice, that is, for the dominant purpose of seeking or receiving legal advice.
6. However, I am not satisfied the Respondent has discharged its onus to demonstrate the document was intended to be confidential in nature. This includes because the document itself has no confidential markings.
7. Further, while the council paper demonstrates an attempt to maintain confidentiality in December 2023 through the preparation of a confidential memorandum containing a summary of the advice, the evidence of Ms Bolton asserting confidentiality has been maintained (p 3 exhibit R1 at [12]-[13]) is based on her review of the file and does not demonstrate actual knowledge and is not sufficient to demonstrate confidentiality has in fact been maintained. Therefore I do not consider that the Respondent has discharged its onus on this issue and I cannot be satisfied legal professional privilege applies to the document.
8. In case I am incorrect in respect of the issue of confidentiality, I will also consider the potential loss of privilege issue.

Loss of legal professional privilege - further consideration

1. The Respondent considered whether privilege over the document should be waived and decided that it should not under cl 5(2) of Sch 1 to the GIPA Act. That decision is not reviewable by the Tribunal.
2. However, the Respondent's determination does not preclude the Tribunal from forming an opinion as to loss of privilege within the meaning of s 122 of the Evidence Act where questions of waiver are a matter of fact and degree - requiring consideration of the circumstances and context of each particular case.
3. Relevant principles to consider were set out in College of Law Limited v Australian National University [2013] FCA 492 at [24]: These authorities also establish the following relevant principles concerning implied waiver of privilege (noting that it is common ground here that the common law principles apply at this stage of the proceedings and not Part 3.10 of the Evidence Act 1995 (Cth)): (a) privilege will be waived where the conduct of the person claiming it is inconsistent with the maintenance of the confidentiality in the relevant communication which the privilege is intended to protect; (b) the test for implied waiver is objective, thus where such inconsistency is found, privilege will be waived regardless of the subjective intention of the party claiming the privilege; (c) whether there is inconsistency is to be determined in the context and circumstances of the case and in the light of any considerations of fairness arising from that context and those circumstances; (d) the question of implied waivers raise matters of fact and degree; (e) disclosure of the gist, conclusion, substance or effect of a privileged communication does not necessarily effect a waiver of legal professional privilege in respect of the advice as a whole. Whether it does or not in a particular case depends on whether, in the circumstances of that case, the requisite inconsistency exists between the disclosure on the one hand and the maintenance of confidentiality on the other; (f) the context includes such matters as the nature of the matter in respect of which the advice was received, the evident purpose of the person making the disclosure, and the legal and practical consequences of limited, rather than complete, disclosure; and (g) where the party claiming privilege has disclosed or deployed the relevant information in order to achieve some forensic or other advantage for itself, or to disadvantage another person in a similar way, this may amount to conduct which is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Accordingly, the purpose for which the partial disclosure was made is important.
4. In this review, the issue is whether the conduct of the Respondent is sufficient to constitute an implied waiver of privilege if it has acted in a manner inconsistent with the privilege. In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29] and [34] the High Court held: Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. …What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. … Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency.
5. I am satisfied the conduct of the Respondent has caused privilege over the document to be lost on the material before the Tribunal. This is because of how the Respondent classified the advice during the council meeting and in its paper as well as the discussion of the advice in the council meeting paper.
6. First, at the council meeting the meeting was closed to deal with the advice, and the council paper maintained the memorandum describing the advice was confidential, on the basis there was commercial in confidence information, referring to s10A(2)(d) of the Local Government Act 1993. The option available under s 10A(2)(g) of the Local Government Act 1993 in relation to legal professional privilege was not referred to or relied upon.
7. Further, I am satisfied the discussion of the advice in the council meeting paper effectively disclosed the contents of the advice including because it stated there was "no legal pathway to approve the units" (p 18 exhibit A2). Of relevance in this review is the distinction made in Switchcorp Pty Ltd v Multiemedia Ltd [2005] VSC 425 at [12] (Switchcorp): Returning then to the specific context relevant here, each case must be decided on its own facts applying the general principle to which I have referred. Notwithstanding that, the cases which have dealt with like circumstances to those existing here seem to me to support the following general propositions: 1. A statement which reveals the contents of legal advice, even if it does so in a summary way or by reference only to a conclusion, will, or probably will, result in a waiver. In this respect I refer to: Ampolex in relation to the statement that the party "has legal advice supporting this position", and the subsequent judgment of Justice Kirby on the stay application; Queensland Law Society Incorporated v. Albietz; Australian Unity Health Ltd v. PHIAC, in relation to the statement "legal advice supporting PHIAC'S view of this rule has been received"; Bennett v. CEO of Australian Customs Service; and Ashfield Municipal Council v. RTA of NSW. 2. A statement which refers to legal advice, even if it associates that advice with conduct undertaken or with a belief held by the client, will not, or probably will not, result in a waiver. In this respect I refer to Ampolex in relation to the statement "On the basis of legal advice received, Ampolex believes..."; Australian Unity Health Ltd v. PHIAC in relation to the disclosure of the solicitor's letter as being part of the material acted upon by the council; Multistar Pty Ltd v. Minister for Urban Affairs & Planning; British American Tobacco Australia Services Ltd v. Cowell; Temwood Holdings Pty Ltd v. Western Australian Planning Commission; and Nine Films & Television Pty Ltd v. Ninox Television Ltd.
8. In my view in this review the situation is analogous to the first of the two options identified in Switchcorp because of the references to and disclosure of conclusions, as discussed above. Therefore an implied waiver of privilege has occurred.

No conclusive presumption

1. I have found on two bases that legal professional privilege does not apply to the document. The first on the basis of confidentiality and the second on the basis if there was privilege applying to the document it has been lost due to the conduct of the Respondent.
2. Therefore I am not satisfied there is an overriding public interest against disclosure of the document under cl 5 of Sch 1 to the GIPA Act, which is to be conclusively presumed under s 14 of the GIPA Act.

Consideration of the public interest test

1. If there is no conclusive presumption of an overriding public interest against disclosure of the document it is instead necessary to apply the public interest test to the document to determine whether an overriding public interest against disclosure of the document exists. An overriding public interest against disclosure of the document will exist if the public interest considerations against disclosure of the document outweigh the public interest considerations in favour of disclosure of the document: see s 13 of the GIPA Act.
2. The correct approach to be adopted by the Tribunal is the two step process outlined in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [24] - [25], relevantly that: Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. … The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions…
3. As noted in Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94]: Ultimately, the balancing of these competing interests is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.
4. At the hearing the Tribunal raised the issue of what followed if the Tribunal found, as I have now done so, that there is no conclusive presumption against disclosure of the document. Both parties agreed the balancing test would need to be performed. The Respondent relied on the initial assessment of public interest considerations adopted in the original decision of the Respondent and did not put forward any further considerations. The Applicant relied on the assessment by the Information Commissioner.
5. I am satisfied the public interest considerations in favour of disclosure include: the general public interest in favour of disclosure: s 12(1) of the GIPA Act; and the disclosure could reasonably expected to inform the public: s12(2)(b) of the GIPA Act.
6. The Respondent identified a number of public interest considerations against disclosure in its original decision, namely: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: cl 1(d) of the table to s 14 of the GIPA Act; 2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: cl 1(e) of the table to s 14 of the GIPA Act; 3. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: cl 1(f) of the table to s 14 of the GIPA Act; and 4. prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings: cl 3(a) of the table to s 14 of the GIPA Act.
7. On the material before the Tribunal I am not satisfied any of those public interest considerations against disclosure apply in this review. There is no evidence of current or likely court proceedings nor of any potential prejudicial consequences from disclosure of the document. This finding is also supported by the assessment of the Information Commissioner.
8. Public interest considerations against disclosure are to be weighed against the public interest considerations in favour of disclosure, mindful of s 15 of the GIPA Act.
9. Given all of the above, having followed the structured two step process outlined in Camilleri, I am not satisfied that the Respondent, who bears the onus, has established that public interest considerations against the disclosure of the document on balance, outweigh the public interest considerations in favour of disclosure.
10. I am therefore not satisfied that the Respondent has established that there is an overriding public interest against the disclosure of the document.
11. It follows that the decision of the Respondent to refuse access to the document is not the correct and preferable decision. Instead, the correct and preferable decision is for the Respondent to provide the document to the Applicant.

Orders 1. The decision under review is set aside. 2. In substitution a decision is made that the document sought be disclosed to the Applicant.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2024