Toplace Pty Ltd v City of Parramatta

NCAT Administrative and Equal Opportunity|2021-02-11

Background

In submissions filed on 11 March 2021 the Council states: The Property has a very complex history involving Council, having originally been owned by Council, being sold by Council, being subject to many complex development applications, being subject to planning proposals, voluntary planning agreements, subject to orders issued by Council (as regulatory authority) as well as being the subject of multiple Land and Environment Court proceedings, some of which remain on foot.
The Statement of Agreed Facts records the following: 2019 Legal Opinions regarding Stop Work Orders 10. The Applicant has approached the Council on multiple occasions requesting that the Stop Work Order be revoked by Council. 11. On one such occasion, on or about 24 May 2019, the Applicant provided Council with a copy of a legal opinion that the Applicant had obtained from Sandra Duggan SC (now a judge of the Land and Environment Court) dated 3 May 2019, which advised the Applicant, amongst other things, that the requirements of the Stop Work Order had been satisfied and the Stop Work Order should be revoked by Council (Applicant's Legal Opinion) and the continuation of the Stop Work Order was unlawful. 12. In response to Council's receipt of the Applicant's Legal Opinion, Council sought its own legal advice in relation to the matters raised in the Applicant's Legal Opinion, which comprises documents numbered 252-262 in Council's schedule of documents that Council previously filed and served on the Applicant and Tribunal on 23 December 2020 (Documents 252-262). 13. Annexed hereto and marked with the letter "A", is a list of Documents 252-262 with a more detailed description of each document than was included in Council's schedule of documents that Council previously filed and served on the Applicant and Tribunal on 23 December 2020. 14. Documents 252-262 include correspondence between various Council employees, including Council's employed in-house solicitors, and Catherine Morton, the solicitor with the carriage of the matter employed at Sparke Helmore Lawyers who are the external legal firm instructed by Council. 15. Annexed hereto and marked with the letter "B" is a list identifying Council employees and representatives from Sparke Helmore Lawyers relevant to Documents 252-262. 16. A list identifying the relevant employees and representatives of the Applicant is identified in paragraph 19.a. 17. The parties agree that Documents 252-262 are confidential communications created for the dominant purpose of Council obtaining legal advice and therefore client legal privilege applied to the documents. 18. On or around 26 June 2019 the representatives of the Applicant and Respondent engaged in a meeting at Council's administration offices (Affidavit of David Krepp: para 10; Affidavit of Paul Lyth: para 14). 19. The attendees of the meeting were: - a. Applicant / Toplace i. Jean Nassif (Director of Toplace) ii. David Krepp (Development Manager of Toplace) iii. Larissa Brennan (Town Planner, LJB Planning) iv. Jeff Egan (Consultant) b. Respondent / City of Parramatta Council i. Andrew Wilson (Lord Mayor) ii. Rik Hart (Acting Chief Executive Officer) iii. Jennifer Concato (Executive Director City Planning and Design) iv. Mark Leotta (Group Manager Development and Traffic Services) v. Bryan Hynes (Executive Director Property and Place) vi. Justin Mulder (Chief of Staff - Executive Office) vii. Paul Lyth (Group Manager of Regulatory Services) 20. The parties dispute whether client legal privilege has been waived by Council in respect of Documents 252-262. In particular: a. The Applicant contends that Council has waived client legal privilege over some or all of the documents 252-262 during the meeting held between representatives of the Applicant and representatives of Council on or about 26 June 2019; and b. Council contends that Council, by its employees, has not waived client legal privilege in respect of Documents 252-262, at any time.

Issues

It is common ground between the parties that a claim for client privilege would attach to documents 252-262. The Council does not dispute that Mr Lyth had authority to waive legal privilege on behalf of the Council, however its position is that he has not done so, and nor has any other representative of Council.
The issues for determination are: 1. Whether the Council has waived privilege over documents 252-262, so that cl 5 of Sch 1 to the GIPA Act does not apply; 2. If cl 5 of Sch 1 does not apply so as to provide a conclusive presumption of an overriding public interest against disclosure: 1. whether either or both of the public interest considerations against disclosure in cl 1(e) or 3(c) of the Table to s 14 of the GIPA Act apply; and 2. If so, whether those considerations outweigh the public interest considerations in favour of disclosure, so that there is an overriding public interest against disclosure of the information.

Client legal privilege

Clause 5 of Sch 1 provides that there is a conclusive presumption 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, unless the person in whose favour the privilege exists has waived the privilege. In AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [20], the Appeal Panel held that the provisions of the Evidence Act 1995 apply to the determination of that question.
The Council submits that each of documents 252-262 are confidential communications created for the dominant purpose of Council obtaining legal advice from both its externally appointed legal advisors, being Ms Catherine Morton of Sparke Helmore, and Council's employed in-house legal advisors, being Mr Ian Woodward and Ms Caroline Nuttall, and that therefore client legal privilege attaches to the documents. The Council submits that the documents were created in response to Council's receipt of a legal opinion provided by Toplace's legal adviser, dated 3 May 2019 (the Applicant's Legal Opinion).
That submission relies on s 118 of the Evidence Act which applies to provision of legal advice to a client. The concept of "legal advice" is fairly broad, and not confined to a lawyer telling the client what the law provides. It includes advising the client what should prudently and sensibly be done in the relevant legal context, but does not extend to what is purely factual or commercial in nature: General Manager, WorkCover Authority of NSW v Law Society (NSW) [2006] NSWCA 84 at [77]; DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191, at [45]. Client legal professional privilege extends to information or advice of a non-legal character, where that information or advice is connected to the giving of legal advice or pending litigation.
Having considered the documents in the context of those principles, the Tribunal agrees that client legal privilege applies to each of the documents 252-262.

Waiver

Client legal privilege is lost where the client, who has the right to claim privilege over a confidential communication, has acted in a manner that is inconsistent with that right by knowingly and voluntarily having disclosed the substance of the communication to another person, or the substance of the communication has been disclosed with the express or implied consent of the client: Mann v Carnell [1999] HCA 66, (1999) 201 CLR 1, at [29]. The party claiming that there has been a waiver bears the onus to prove, on the balance of probabilities, that the client has acted in a manner that is inconsistent with its right to claim privilege over the communication.
Section 122 of the Evidence Act 1995 deals with the loss of client legal privilege: 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.
Toplace submits that the Council has impliedly waived its right to claim privilege, by disclosing at the meeting of 26 June 2019 the substance of the advice, and indicating it was contrary to the advice on which Toplace was relying. The Council submits that the fact that Toplace knew that advice had been sought was not sufficient to waive the privilege, and that to state the criteria that the Council had for the stop work order to be lifted was not a waiver.
Resolution of this issue depends on consideration of what was said at the meeting of 26 June 2019, as to which the Tribunal has evidence from two of the attendees, being Mr David Krepp, Development Manager for Toplace, and Mr Paul Lyth, Group Manager Regulatory Services of the Council. The other attendees at the meeting are identified at para 19 of the Statement of Agreed Facts (see [34] above).
Mr David Krepp was one of four attendees at the meeting on behalf of Toplace. In his affidavit of 27 January 2021 he states that he has been in the position of development manager for at least 10 years, and in that role is required to oversee development at 189 Macquarie Street. In 2018 he formed the view that the SWO issued in 2017 was no longer applicable as its terms had been satisfied and as a result Council was required to lift the SWO; Council refused; and he requested counsel's advice through Toplace's lawyers.
The meeting of 26 June 2019 was not a typical meeting because the Lord Mayor and CEO were present. Some time before the meeting counsel's advice had been provided to Council. The first issue discussed at the meeting was the SWO. In the course of that discussion he said words to the effect that "we have legal advice from our barrister that the SWO is illegal". Mr Paul Lyth replied in words to the effect of "we have separate legal advice that says the opposite. Our advice says that Toplace must obtain a development approval for the water re-use for the SWO to be lifted". In response he asked "will you share your legal advice with us", and Mr Lyth replied "no". He was surprised that Mr Lyth would openly verbally rely on a piece of legal advice to support his position in an open meeting which included the heads of both Council and Toplace but also refuse to table that advice.
In oral evidence Mr Krepp stated that discussion of the SWO took 15 to 20 minutes. At the conclusion of the discussion it was clear that the SWO would not be lifted. He had gone through the Applicant's Legal Opinion, which had been tabled, and said the SWO was no longer valid and should be removed. Mr Lyth said they had legal advice of the opposite conclusion. He asked for a copy and was told no, and "I don't have to give it to you". At no time did Mr Lyth mention legal privilege. Mr Nassif, Toplace director, got heated because they were there to sort out the problem. Mr Krepp said that he was the one asking all the questions; he took notes throughout the meeting.
In his affidavit of 28 January 2021 Mr Paul Lyth stated that he was one of seven attendees on behalf of the Council. He has been in the role of Group Manager of Regulatory Services since 2016, and in that role oversees Council's performance of its regulatory statutory functions, including 189 Macquarie Street. That role includes instructing Council's external solicitors and its in-house legal team.
Mr Lyth stated that the purpose of the meeting was to discuss various issues with the development at 189 Macquarie Street, and one of the initial matters discussed was the SWO. He stated that in the course of the meeting Mr Krepp stated "we have legal advice from our barrister that the SWO is illegal"; he denies saying the words attributed to him by Mr Krepp in response. Mr Lyth stated that in response he said words to the effect of "Council's external legal advisors have considered the Applicant's Legal Opinion. The SWO will remain in place until such time that a new development consent is issued allowing for an alternate ground water management system to replace the current development consent which presently requires for the site to be water-tight".
Mr Lyth stated that his reply to Mr Krepp merely acknowledged the fact that Council had considered the Applicant's Legal Opinion, and that at no stage had he disclosed to Toplace or any other third parties the substance, gist or conclusion of the legal advice that Council had obtained. He had to provide Toplace with feedback as to the anticipated criteria that it had to meet before the SWO could be lifted, resulting in disclosure of a factual criterion that Council as a regulatory authority required Toplace to meet, and not a disclosure of the substance or conclusion of any legal advice. He responded to Mr Krepp's request for Council to share its legal advice with Toplace by saying "no", and referring to legal privilege.
Mr Lyth provided a copy of minutes prepared after the meeting by Council officers. That document is an email dated 28 June 2019 sent by Mr Lyth to Ms Concato, Mr Leotta, and Mr Hynes, the Council officers who attended the meeting, forwarding notes prepared by Mr Mulder and advising that a single document would be formulated for approval.
In oral evidence Mr Lyth stated that he relied on the notes taken by Mr Mulder. He had some notes, but has not referred to them. He carefully reviewed the notes taken by Mr Mulder, and had no amendments. From memory, the notes annexed to the email were Mr Mulder's original notes. He thought the discussion of the SWO took 10 minutes at most. He could not recall if Mr Krepp went through the Applicant's Legal Opinion. Asked about his recall of the conversation concerning the SWO Mr Lyth stated that he recalled saying "I have sought additional advice" after seeing the Applicant's Legal Opinion. The Council had been provided with the Applicant's Legal Opinion on 3 May 2019. Discussion of that advice was not the primary purpose of the meeting. His comment in response to the reference by Mr Krepp to the Applicant's Legal Opinion was that they had obtained legal advice and their legal advice did not agree with that of Toplace. He recalled referring to legal privilege.
Mr Lyth was asked about his previous involvement with privilege issues, and said that there have been a number of cases where Council had sought legal advice on the status of compliance matters, which would be subject to privilege; there were all sorts of matters in a number of areas where they had sought legal advice before instigating action.
Toplace submits that the evidence of Mr Krepp as to the meeting should be preferred to that of Mr Lyth, because Mr Lyth accepted in oral testimony that in preparing his affidavit he relied on a minute prepared by Council officers; he did not offer an explanation as to why those Council officers were not called to give evidence by the Council; he did not contribute to the Minute, for example to edit the description of "Toplace person 1" to read "David Krepp"; and he prepared his own minute of the meeting and that minute was available to him but he did not offer any explanation as to why he or the Council did not tender that note.
Toplace submits that if the evidence of Mr Krepp is accepted, the Tribunal should find that Mr Lyth specifically referred to the effect of the legal advice within the context of a discussion regarding the exercise of Council's statutory powers, at a meeting between Council's most senior staff and elected officials and Toplace's senior management.
The Council submits that the evidence of Mr Lyth that at no stage did he disclose the substance or conclusion of Council's legal advice and had only disclosed a factual criterion that Council as regulatory authority required Toplace to meet, should be accepted. There is no evidence of contemporaneous notes by any of the four Toplace attendees; the possibility of waiver has only now, some 18 months later, been raised; and there are inconsistencies in Mr Krepp's evidence as to the identities of the Toplace attendees.
The Tribunal prefers the evidence of Mr Lyth as to what was said at the meeting of 26 June 2019 to that of Mr Krepp, for the following reasons. The Tribunal accepts that in his role as Group Manager Regulatory Services since 2016 Mr Lyth has had involvement in instructing and obtaining legal advice from both the external and in-house lawyers of Council, on a range of compliance and regulatory issues, which would have been subject to legal professional privilege. The development of 189 Macquarie Street has been a complex issue for many years, and Mr Lyth could not count the number of times he had met with Mr Krepp and others before the meeting of 26 June 2019. As agreed between the parties, Toplace has approached the Council on multiple occasions requesting that the SWO be revoked by the Council. Those factors make it more likely than not that Mr Lyth would be cautious as to what he said or disclosed about any specific legal advice Council had obtained in relation to such a contentious issue, so that his version of what he said is more likely to be correct. There are no contemporaneous notes of any of the Toplace attendees in evidence that would counter his recollection.
The Tribunal does not accept the submission that it was unreasonable for Mr Lyth to rely on the notes taken by Mr Mulder in preference to any notes he had taken: the email circulating the draft to other Council attendees was sent two days after the meeting, and there is no reason to question Mr Lyth's evidence that he reviewed the notes and made no amendments. Toplace has not suggested any reason why, if the practice was to record the Toplace participants by reference to number rather than name, Mr Lyth needed to amend those references on the draft if it was clear to whom the reference referred. Mr Mulder's notes as annexed to Mr Lyth's affidavit record in relation to the discussion of Item 1: Lift Stop Work Order on the meeting agenda a request by "Toplace person 1" (Mr Krepp) to get a copy of Council's legal advice, and Mr Lyth's response "No we cannot provide it due to legal privilege"; and Mr Nassif, Toplace's director saying "If you are not going to accept senior counsel legal opinion then we cannot move forward". That record is consistent with there having been discussion of the Applicant's Legal Opinion, and that Council had obtained its own legal advice in response, as well as Mr Krepp's evidence that Mr Nassif became "heated" when the Council refused to provide a copy of that advice. The meeting notes confirm that the issue in relation to the SWO being lifted was with the Council's concern that the site was not water tight.
The Tribunal finds that at the meeting of 26 June 2019 Mr Lyth said that the Council had obtained its own legal advice and it did not agree with that obtained by Toplace, and that the Council required that Toplace obtain a new development consent for an alternate groundwater management system for the SWO to be lifted.
The issue is whether those statements are sufficient to constitute an implied waiver of privilege, by reason of the Council having acted in a manner inconsistent with the privilege. In Mann v Carnell Gleeson CJ, Gaudron, Gummow and Callinan JJ held: 29. 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. … [34]…Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency.
The relevant principles were summarised by Griffiths J in College of Law Ltd v Australian National University [2013] FCA 492 at [24]: (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.
That statement of principles was adopted by Boland J in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 at [143].
In Osland v Secretary to Department of Justice (2008) 234 CLR 275 the High Court confirmed that whether a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case; and that questions of waiver are matters of fact and degree.
At issue in this proceeding is whether the substance of the Council's legal advice was disclosed. Toplace relies on the reasoning in Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 at 19, where Rolfe J rejected a submission that all the reasoning behind a conclusion must be exposed before it can be said there is a disclosure of the substance, and held: In my opinion the substance of the advice may well be disclosed if the ultimate conclusion, without the supporting reasoning process, is revealed. At that stage there has been, in my opinion, a disclosure of the substance of the advice, that is, what the advice is. Further the ultimate conclusion, whilst it may be a "result" or "consequence" of the reasoning is more than that: in its own right it is the essence or vital part of the advice. Some advices may be very short and answer the question with a minimum of reasoning or, in some circumstances, without any.
Toplace relied on the distinction drawn in Switchcorp Pty Ltd v Multiemedia Ltd [2005] VSC 425. In that matter Whelan J referred to the general principle stated in Mann v Carnell, and held: 12 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.
Toplace submits that Mr Lyth's remarks fall within the first of the categories in Swithcorp: rather than suggesting that the Council's actions were justified by a legal advice, he stated the substance of the advice including that it was contrary to the Applicant's Legal Opinion. In doing so, Mr Lyth directly addressed the content of the advice and impliedly waived the ability to claim privilege over it.
In Ampolex the dispute between the parties concerned the correct conversion ratio for convertible notes issued by Ampolex. The court held that in issuing a statement to its shareholders about the likely outcome of the litigation, and stating that its views had regard to, inter alia, the advice of the lawyers engaged for the purposes of the litigation, Ampolex had not disclosed the substance of the advice. In contrast, the statement in a separate document of Ampolex's belief as to the correct conversion ratio, and that it "has legal advice supporting this position", was held to disclose the substance of Ampolex's advice and led to the loss of privilege in that advice.
As acknowledged in the authorities referred to above, questions of waiver are matters of fact and degree. As recently confirmed in Dreyfus v Attorney General [2021] AAT 1249, those authorities also establish that deploying the substance or effect of legal advice for forensic or commercial purposes may be inconsistent with the maintenance of confidentiality. Disclosure of the existence of legal advice obtained in response to the Applicant's Legal Opinion would not be sufficient to amount to a waiver. Having regard to the context and circumstances of the case, the Tribunal is not persuaded that Mr Lyth's statements at the meeting were a disclosure of the substance of the Council's legal advice. Mr Lyth's statement at the meeting that the Council's legal advice differed from that in the Applicant's Legal Opinion was not, in the Tribunal's view, inconsistent with maintaining confidentiality in the terms of that advice. The meeting notes confirm that the Council's position that a development application was required was maintained, and Mr Lyth's statement that the SWO would remain in place until such time that a new development consent was issued would not, on that basis, constitute a waiver of privilege.
The Tribunal is satisfied that there was no waiver of the privilege attached to the information. Accordingly, applying s 14(1) and cl 5 of Sch 1 to the GIPA Act, it is conclusively presumed that there is an overriding public interest against disclosure of the information.

Whether there is an overriding public interest against disclosure

If the conclusion reached above that the privilege has not been waived is not correct, and cl 5 of Sch 1 does not apply, the issue is whether the public interest considerations against disclosure in cl 1(e) or cl 3(c) of the Table to s 14 apply, and if so, whether those considerations outweigh the public interest considerations in favour of disclosure: GIPA Act, s 13.
The Tribunal is required to: 1. Identify the public interest considerations in favour of disclosure of the information; 2. Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended by the respondent; and 3. If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under, and as permitted by, s 55: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19.
That process requires a broad value judgment to be made, having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport NSW v Searle [2018] NSWCATAP 93 at [104].

Public interest considerations in favour of disclosure

In addition to the presumption in favour of disclosure stated in s 5 of the GIPA Act, the Council submits that the relevant public interest considerations in favour of disclosure are that some of the information is relevant to orders previously issued by Council which impact Toplace's property; and that disclosure of the information could be reasonably expected to promote accountability in Council's decision-making processes, to promote openness and transparency in Council's operations, to promote open discussion between Toplace and the Council, and to inform the public about the operations of the Council.
The Council submits that the public interest considerations in favour of disclosure should not be given significant weight, as the documents do not relate to the assessment of any of Toplace's applications but rather to strategic decisions made by Council in the course of and following legal proceedings in the Land and Environment Court and in relation to legal advice provided to Council, insofar as those documents related to the imposition of the SWO.
Toplace agrees with the Council as to the relevant public interest considerations in favour of disclosure, however submits that there is no basis for the submission that those considerations should be given limited weight.
The Tribunal accepts the parties' identification of the public interest considerations in favour of disclosure. In attributing weight to those considerations, the Tribunal takes into account Toplace's motive for making the access application, which is a relevant personal factor of the application as provided in s 55 of the GIPA Act: s 55(2). As is apparent from the Statement of Agreed Facts, Toplace has been endeavouring for some time to have the SWO revoked, and is relying on its own legal advice that the requirements of the SWO have been satisfied. The access application can be seen to be at least in part intended to obtain information as to the reasoning underlying the Council's decisions in the exercise of its regulatory functions. The Tribunal considers that moderate weight should be attributed to the public interest considerations in favour of disclosure.

Public interest considerations against disclosure

In considering the public interest considerations against disclosure, the following principles are relevant: 1. The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. 1. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC." 1. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]). 2. In considering the evidence required to establish that disclosure "could reasonably be expected to have" one of the effects stated in cll 1 or 3, the relevant principles are: 1. a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; 2. there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; and 3. prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses: Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [59].
The evidence in support of the Council's position on cl 1(e) and cl 3(c) of the Table to s 14 is provided in an affidavit of Mr Ian Woodward, Group Manager of Legal Services of 9 February 2021, and an affidavit of Mr Lyth, also 9 February 2021.
Mr Woodward states that the documents relate to and address various strategic matters for Council's consideration arising from the previous legal proceedings in the Land and Environment Court, and disclosure could reasonably be expected to reveal Council's deliberative processes in relation to potential legal proceedings as foreshadowed in the Applicant's Legal Opinion.
In his affidavit of 9 February 2021 Mr Lyth addresses the public interest considerations against disclosure in cl 1(e) and cl 3(c). Mr Lyth stated that the documents 252-262 were created as part of the process he undertook on behalf of Council in response to a request from Toplace to have the SWO revoked. In support of that request Toplace had provided the Applicant's Legal Opinion, in which it was contended that the requirements of the SWO had been satisfied following the issue by Council of two building information certificates, BC/74/2018 and BC/75/2018. That opinion also canvassed the commencement of Class 4 proceedings in the Land and Environment Court should the SWO not be revoked, seeking a declaration and the necessary injunctive relief. In considering whether or not the SWO should be revoked and the consequences if it were not, the Council instructed its legal advisors to consider the Applicant's Legal Opinion. He formed the view that for Council to effectively discharge its statutory obligations in relation to the SWO, in his role as Group Manager of Regulatory Services, the Council should seek its own legal advice and accordingly he requested that advice. The Council needed to be in an appropriate position to provide Toplace with feedback as to the anticipated criteria it had to meet before the SWO could be lifted. If such documents were not subject to the public interest considerations under cl 1(e), that would impact on Council's future ability to seek independent advice before exercising its complex statutory functions.
In oral evidence Mr Lyth agreed that resolving the issues concerning 189 Macquarie Street was in the interests of Toplace and the Council, and in the public interest. He agreed they needed to be resolved, but his concern was about the development consent. The deliberative processes with which he is involved relate to non-compliance issues; it is his role to point out what the development consent requires.
Documents 252 to 262 cover the period 23 May 2019 to 11 June 2019 and 3 to 10 December 2019, and are variously email communications between Council officers, between Council officers and in-house lawyers, from Council officers to Council's external lawyers, from Council's external lawyers to Council officers and in house lawyers, and from Council's in house lawyers to Council officers.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The Council submits that the public interest consideration against disclosure in cl 1(e) applies, and should be given moderate weighting, because they relate to and address various strategic matters for Council consideration arising from the course of the earlier Land and Environment Court proceedings and disclosure could reasonably be expected to reveal the Council's deliberative processes in relation to potential future legal proceedings.
Toplace accepts that in certain circumstances the public interest is not served by disclosure of advices taken in the course of deliberative processes, however the advice has been relied upon in support of Council's actions in a public forum: the Council should not be able to reveal the gravamen of a document within its deliberative process but then refuse to disclose that document. If clause 1(e) applies, it should be given low if not nil weight in circumstances where the Council has revealed the content of the advice in a public meeting.
Having considered documents 252-262, and the context to their creation provided in the evidence of Mr Lyth, the Tribunal is satisfied that disclosure would reveal deliberations within Council, and advice sought from and given by Council's in house and external lawyers to Council officers, in relation the exercise of the Council's regulatory and enforcement functions concerning the site, which is an ongoing issue of concern as ventilated in a number of meetings between the parties. The same conclusion is reached in relation to document 269. The Tribunal is satisfied that disclosure of the documents could reasonably be expected to prejudice the deliberative processes of the Council in the ongoing management of the regulatory and compliance issues for the development of 189 Macquarie Street. The public interest consideration against disclosure in cl 1(e) of the Table to s 14 applies.
In support of its position that the public interest consideration against disclosure in cl 3(c) applies, the Council submits that: 1. Although the initial court proceedings between the parties in Toplace Pty Ltd v City of Parramatta Council [2017] NSWLEC 1594 are now finalised, the Applicant's Legal Opinion foreshadowed the commencement of future Class 4 proceedings in the Land and Environment Court, and documents 252-262 were created in response to that legal advice; and 2. Toplace presently has other ongoing Land and Environment Court proceedings with the Council in relation to 189 Macquarie Street, in Class 1 proceedings (2020/228352) appealing the refusal of a development application seeking consent for the reuse of groundwater (toilets and irrigation) with the excess being taken from the site by tanker. Although the subject matter of documents 252-262 is not directly relevant to the subject matter of those proceedings, the documents were prepared having regard to a number of other documents and communications of the Council, and the disclosure of the documents contains sensitive legal advice related to the property which could have a prejudicial impact on other proceedings.
Mr Lyth's affidavit evidence was that in addition to the proceedings referred to above, there are at least two development applications lodged by Toplace in relation to 189 Macquarie Street, being DA/356/2020 regarding reuse of groundwater on site and disposal of excess groundwater by private line to Clay Cliff Creek, and DA/493/2020 for construction of two towers above an existing 7 storey podium providing a total of 718 residential units and the use of 5 basement levels for car parking (to be determined by the Sydney Central City Planning Panel). In his opinion, disclosure of documents 252-262 could have a prejudicial impact on those other Court proceedings by revealing Council's sensitive deliberative processes and other documents and communications relevant to the land.
In oral evidence Mr Lyth agreed that there were no development applications under consideration until after the June 2019 meeting, however his concern was with the progress of the matter. While he is not a lawyer, he has to deal with various legislation and has a good overall appreciation of the requirements. Disclosure would be relevant to possible future action, including any formal prosecutorial action.
Toplace submits that the Council has not established any nexus between the proceedings on foot in the Land and Environment Court and the advice the subject of the documents in dispute, and that the public interest in releasing a document or documents publicly relied on by public officials outweighs any of the considerations against disclosure. At its highest, the advice is an advice by an external lawyer setting out an opinion open for acceptance or rejection by the Council. The mere existence of an opinion on a legal matter does not, in its submission, of itself cause prejudice to any current or future court proceedings.
The Tribunal is not persuaded that the Council has established that disclosure of documents 252-262 could reasonably be expected to have the effect of prejudicing court proceedings by revealing matter prepared "for the purposes of or in relation to current or future proceedings".
[NOT FOR PUBLICATION]
The documents are connected to the ongoing subject matter of 189 Macquarie Street, which has been the subject of court proceedings. There may be future legal proceedings, depending on the various regulatory processes identified in Mr Lyth's evidence. The Tribunal is not satisfied, however, that real and substantial grounds have been provided to support the opinion expressed that disclosure could reasonably be expected to have the particular effect specified in cl 3(c) of the Table to s 14 of the GIPA Act.
The Tribunal concludes that the public interest consideration against disclosure provided in cl 1(e) of the Table to s 14 applies, but not that in cl 3(c). The personal factors of the application cannot be taken into account as factors against providing access to the documents, as relevant to whether disclosure of the information could reasonably be expected to have the effect referred to in cl 1(e) of the Table: s 55(3).
In determining the weight to be attributed to the public interest consideration against disclosure in cl 1(e), the Tribunal regards the context of the ongoing issue between the parties since the SWO was issued in 2017 as particularly relevant. The notes of the meeting of 26 June 2019 annexed to Mr Lyth's affidavit of 28 January 2021 confirm the complexity of the issues relating to whether the SWO can or should be lifted, in issue at the time the documents 252-262 were created. Mr Lyth's second affidavit of 9 February 2021 confirms that those issues are ongoing. The existence of document 269 is further confirmation of that position. The Tribunal gives significant weight to the public interest against disclosure in cl 1(e) of the Table to s 14 of the GIPA Act.

Balancing the competing public interests

The Tribunal concludes that on balance the public interest consideration against disclosure in cl 1(e) of the Table to s 14 of the GIPA Act outweighs the public interest considerations in favour of disclosure for the information contained in documents 252 to 262. Applying s 13 of the GIPA Act, there is an overriding public interest against disclosure of that information.

Conclusion

The Tribunal is satisfied that there is an overriding public interest against disclosure of the information for which Toplace is seeking access, by operation of s 14(1) and cl 5 of Sch 1 to the GIPA Act, and in the alternative, under s 13 of the GIPA Act. Applying s 9(1) of the GIPA Act, Toplace is not entitled to be provided with access to that information. The Council would be entitled under s 58(1)(d) of the GIPA Act to refuse to provide access to the information.
The correct and preferable decision is that the Council is not required to provide Toplace with access to the documents in dispute. The deemed decision to refuse to deal with the application should be affirmed.

Orders

The Tribunal orders: 1. The deemed decision to refuse to deal with the access application is affirmed. 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure of: 1. the material filed by the respondent on a confidential basis (exhibit R4), 2. exhibit R5, and 3. those paragraphs of these reasons identified as [Not for publication], is prohibited. That material is not to be released to the applicant or the public.

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: 02 June 2021

REASONS FOR DECISION

Toplace Pty Ltd (Toplace) is the developer of land in the centre of Parramatta, at 189 Macquarie Street. Development consent was granted in 2015 for the construction of a 30 storey mixed use development, with 425 apartments, retail space, 715 commercial car parking spaces over one level of basement and six levels of podium, and three levels of basement car parking with 389 spaces for residential use.
A modification application to excavate and construct two additional basement levels was refused in February 2016. On or about 7 July 2017, as a result of alleged unauthorised building work, City of Parramatta Council (the Council) issued an order under item 19(a) of the then s 121H of the Environmental Planning and Assessment Act 1979 (the EPA Act) to cease all building work on the site (the Stop Work Order).
The terms of the Stop Work Order (SWO) were summarised in the Statement of Agreed Facts: 8. The Stop Work Order to cease all building work at the site requires that 'Toplace as the person apparently engaged in carrying out the building work at the Premises, is required to cease all building work at the Premises' on the following: a. The erection of any levels above car parking level 6, as detailed drawing A36 issue C of development consent DA/852/2013. b. The construction of any residential units approved on car parking levels 2, 3, 4, 5 and 6 as shown in architectural plans approved on 25 May 2015 under development consent DA/852/2013 (with drawing reference numbers A15, A16, A17, A18 and A19). c. Building work on the following levels: i. Basement levels 1, 2 and 3 (also known as residential car parking levels), or ii. Lower Level 1, Upper Level 1, Level 2, Level 3, Level 4, Level 5 and Level 6 (known as council carpark). d. Except for works that are carried out in accordance with Development Consents DA/183/2014 and DA/852/2013, and Construction Certificates J140606 and J150150.
Toplace's appeals against the Stop Work Order and the refusal of the modification application were dismissed by the Land and Environment Court: Toplace Pty Ltd v City of Parramatta Council [2017] NSWLEC 1594. The Stop Work Order remains in place.
On 28 February 2020 Toplace applied to the Council for access under the Government Information (Public Access) Act 2009 (the GIPA Act) to the following documents relating to 189 Macquarie Street: All correspondence, emails, memorandums and documents between (to and from): Council staff and Councillors; Council staff and senior management; Council staff and consultants; Council staff and neighbouring properties, Sue Weatherley and Council staff; Sue Weatherley and senior management; Sue Weatherely and Councillors; Council staff emails and correspondence between other Council staff; Ben Barrak and senior management; regulatory and property/assets departments; senior management and Councillors.
The Council requested that the scope of the request be refined.
On 5 March 2020 Toplace stated that the request related to: All correspondence, emails, memorandums and documents to and from and between council staff, Senior Management and councillors from December 2014 to March 2020 in relation to 189 Macquarie Street Parramatta. All correspondence, emails, memorandums and documents to and from, between Council staff, Senior Management and consultants from December 2014 and March 2020 in relation to 189 Macquarie Street Parramatta.
Toplace identified 21 Council staff and Senior Management, 6 councillors and the Council administrator; and two consultants.
A further request was made to refine the scope of the request. In a letter dated 10 August 2020 Toplace confirmed that the access request related to: All correspondence, emails memoranda and documents to and from and between Council staff, Senior Management and Councillors from December 2014 to March 2020 in relation to 189 Macquarie Street, Parramatta as specified in our email to Parramatta Council dated 5 March 2020. This request also includes all folders you have referenced (folders 1-37) in relation to property, building, planning and infrastructure related matters for this property. The relevant Council staff are identified in this email.
On 18 August 2020 Toplace applied to the Tribunal under s 100 of the GIPA Act for administrative review of the deemed refusal of the access application. Under s 63 of the Administrative Decisions Review Act 1997, the task of the Tribunal on review is to determine what is the correct and preferable decision.

At a glance

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Judgment (11 paragraphs)

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Cases Cited (15)

Cited By (3)