Wollondilly Shire Council v Styles

NCAT Appeal Panel|2024-05-03

Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338 STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 Theophilas v Chief Commissioner of State Revenue [2016] NSWCATAP 111 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Waterford v Commonwealth (1987) 163 CLR 54 Webb v Port Stephens Council [2023] NSWCATAP 133 Category: Principal judgment Parties: Wollondilly Shire Council (Appellant) Lynette Styles (Respondent) Representation: Counsel: R Coffey (Appellant)

Solicitors: Lindsay Taylor Lawyers (Appellant) Respondent (self-represented) File Number(s): 2024/00008887 Publication restriction: For 14 days from publication of this decision: (a) Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the evidence in "Exhibit 1" of these proceedings is prohibited. (b) Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the respondent of the evidence in "Exhibit 1" in these proceedings is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2023] NSWCATAD 315 Date of Decision: 12 December 2023 Before: PH Molony, Senior Member File Number(s): 2023/00242487

Background

Wollondilly Shire Council has appealed from a decision of the Tribunal setting aside a decision made by the Council under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
Ms Styles applied to the Council for access to certain information under the GIPA Act. The Council identified eleven emails between various officers of the Council as falling within the scope of her request. The Council decided to disclose some of the emails in full. Parts of other emails were redacted. The grounds for not disclosing certain information to Ms Styles was either "legal professional privilege" or because there were public interest considerations against disclosure which outweighed the public interest considerations in favour of disclosure: GIPA Act, s 13 and Table to s 14 of the GIPA Act. We set out the relevant provisions below.
Under cl 5, Sch 1 to the GIPA Act 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 privilege is waived. 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.
The "public interest test" is set out at s 13: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Under the table to s 14 of the GIPA Act, there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - . . . (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) 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, (f) prejudice the effective exercise by an agency of the agency's functions, . . . (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

Tribunal's decision

The Tribunal dispensed with an oral hearing: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2). The Tribunal was satisfied that the issues for determination could be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. The Council had agreed it would be appropriate to dispense with a hearing and did not appeal from that order.
The Tribunal described the emails the subject of Ms Styles' application and summarised the Council's submissions at [10] - [12] of the decision: 10 The decision was made by Ms Roberts, the agency's Access to Information Officer. She said that the information in issue was to be found in three email chains. They are: (1) Email Chain 1 - a chain of three emails internal to the agency between its Manager Governance, Integrity and Ethics and the Mayor, dated 15 and 16 March 2023, regarding a code of conduct complaint made by the applicant (pages 1 and 2 of the confidential documents). Only the last of these, from the Manager Governance, Integrity and Ethics to the Mayor (in response to a disclosed question from the Mayor about procedure in code of conduct investigations) contains redactions, with the whole response having been deleted. (2) Email Chain 2 - a chain of six emails (pages 3 to 5 of the confidential documents) commencing on 10 March 2023 at 7:57am with an unredacted email from Ms Styles to the agency regarding a code of conduct complaint. This is followed in order by - (a) an unredacted email timed 10 March 2023 at 7.57am from Ms Styles to the agency about a code of conduct complaint. (b) an unredacted email timed 15 March 2023 at 3:33pm from the Manager Governance, Integrity and Ethics to the Chief Executive Officer of the agency. (c) an email timed 17 March 2023 at 5:39pm from the Chief Executive Officer the Manager Governance, Integrity and Ethics. The substance of this has not been disclosed and is redacted. (d) an email timed 20 March 2023 at 2:20pm from the Manager Governance, Integrity and Ethics to the Chief Executive Officer and copied to General Counsel for the Council. The substance of this has been redacted. (e) an unredacted email timed 20 March 2023 at 3:22pm from the Chief Executive Officer to the Manager Governance, Integrity and Ethics and copied to General Counsel. (f) an email timed 20 March 2023 at 3:55pm from General Counsel to the Chief Executive Officer and the Manager Governance, Integrity and Ethics. The substance of this has not been disclosed and is redacted. (3) Email Chain 3 - a chain of two emails, both dated 21 March 2023, between the Manager Governance, Integrity and Ethics and General Counsel (page 6 of the confidential documents). The substance of both has not been disclosed and is redacted. 11 In her decision Ms Roberts said the redactions she made were based on two public interests against disclosure, which she found applied to all the redacted information, namely, that, if disclosed, the information could reasonably be expected to have one or more of the following effects: (1) 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, ((1)(e) of the Table to s 14) and (2) prejudice the effective exercise by an agency of the agency's functions ((1)(f) of the Table to s 14). 12 These were found to outweigh the public interest in favour of disclosure which Mr Roberts found to be: • To promote open and transparent government. • Individuals should have confidence in the workings of Council and how Council addresses issues. • Access to information leads to individuals being informed of events/issues. • To provide a legally enforceable right to access information. • The disclosure would promote the objective of the Act. 13 In addition, in submissions with respect to email chains (2) and (3), the agency has argued that the redacted information is the subject of legal professional privilege and, as such, it is conclusively presumed that there is an overriding public interest against disclosure of that information: s 14(1) and Schedule 1, cl 5.
The Tribunal summarised the legal principles applicable to a claim of legal professional privilege under the GIPA Act at [44]-[48]. Essentially, ss 117 and 118 of the Evidence Act 1995 (NSW) concerning client legal privilege apply. The agency bears the burden of proving that the withheld information would be privileged from production in legal proceedings on the ground of client legal privilege: GIPA Act, s 105.
Legal professional privilege was claimed over three emails. In relation to the first of those (sent on 20 March 2023 at 3.55 pm and described at 10(f) of the Tribunal's decision) the Tribunal decided at [51], that it, "... contains a comment from General Counsel which does not contain legal advice". At [49] the Tribunal noted that the Council had provided "no evidence" in support of its submissions that the information in issue contains confidential communications between officers of the agency and an employee lawyer made for the dominant purpose of providing legal advice.
In relation to the other two emails over which legal professional privilege was claimed (dated 21 March 2023 at 11.17 am and 11:20 and described in 10 of the Tribunal's decision) the Tribunal decided at [52], that it was not clear whether the first email seeks legal advice or management advice. As to the second email, the Tribunal found at [52] that the "... advice does not impress as legal advice".
The Tribunal's reasoning is at [49]-[56] of the decision: 49 The difficulty the agency faces is that it has provided no evidence in support of its submission that the information in issue contains confidential communications between officers of the agency and an employee lawyer made for the dominant purpose of providing legal advice. There is no statement from the agency explaining why email chains 2 and 3 are the subject of legal advice privilege under s 118 of the Evidence Act 1995 (NSW). 50 I have read email chain 2 and 3, without redactions, in their confidential form. It is not clear to me that legal advice is sought and given in those emails. 51 The first three emails in email chain 2, described in par 10(2)(a), (b) and (c) above, were not sent or copied to General Counsel. The fourth and fifth emails (par 10(2)(d) and (e)) were simply copied to General Counsel. They did not seek any advice from him. The sixth email (par 10(2)(f)) contains a comment from General Counsel which does not contain legal advice. 52 Email chain 3, consisting of two emails, is an exchange of emails between the Manager Governance, Integrity & Ethics and General Counsel. Whether the communication seeks legal advice or management advice and review is not clear. The fact that the emails are marked confidential "legal advice" or "privileged legal advice" does not of itself demonstrate that they are subject to legal advice privilege. The advice provided does not impress as legal advice. 53 The person providing the advice is identified as General Counsel for the agency and is presumably an employee of the agency. There is no evidence adduced by the agency as to the terms of that person's engagement and duties, as to the independence General Council has within the agency, or as to whether the General Counsel holds legal qualifications or a current practicing certificate. There is an assertion to that effect in submissions, but no evidence provided. There is no evidence as to the nature of General Counsel's duties, and as to whether they include management, mentoring, commercial, liaison, policy or other roles beyond the provision of legal advice. The importance of these was emphasised in General Manager, Workcover Authority of NSW v Law Society of NSW [2006] NSWCA 84. There is no evidence beyond email chain 3 itself as to what advice was sought. 54 The provision of evidence about such matters is the starting point for a consideration of whether information is or is not privileged: see AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at [44] where Young J set out in detail his understanding of the relevant principles and of the types of evidence required. 55 Section 105 places the onus on the agency to demonstrate that email chains 2 and 3 are subject to legal professional privilege. This requires the agency to satisfy the Tribunal that each of the elements which s 118 of the Evidence Act requires for legal advice privilege to apply is satisfied. The onus is on the agency. Beyond assertions in par 19 of submissions in reply (which are not evidence) the agency has not provided any material that even attempts to satisfy that onus: not even to the point of demonstrating that General Counsel is a lawyer. The material provided by the agency, including the email chains themselves, does not satisfy me that the communications they contain are subject to legal advice privilege, or that the advice - such as there is - was provided by a lawyer to a client. The agency has therefore failed to discharge its onus under s 105. 56 I am not satisfied that email chains 2 and 3 are the subject of legal professional privilege.
The Tribunal then turned to the issue of whether any of the nominated public interest considerations against disclosure applied to the information redacted from email chains 1, 2 and 3. The Tribunal noted that in the Council's decision in response to Ms Styles' application, it had relied on cl 1(e) and cl 1(f) to the Table to s 14. However, in the submissions to the Tribunal below the Council did not rely on cl 1(e) and (f) at all but on cl 1(d) and cl 1(h).
The Tribunal found that the agency had failed to provide any evidence, other than assertions in submissions, in support of their contentions. The Tribunal's reasoning on this issue is at [57] - [63]: 57 In issue here is all the information redacted by the agency from email chains 1, 2 and 3. The agency found that disclosure of that information could reasonably be expected to: (1) 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 (point 1(e)); and/or (2) prejudice the effective exercise by an agency of the agency's functions (point 1(f)). 58 Once again, the agency has failed to provide any evidence in support of those contentions. Ms Robert's statement does not address why she reached those conclusions beyond asserting that she "deemed" the information to be such. Neither in her statement, nor in the decision itself, did she outline her reasons for reaching those conclusions. This is insufficient to discharge the onus on the agency. 59 In its submissions the agency did not rely on points 1(e) and (f) at all. Somewhat puzzlingly, the submissions at par 31 rely on: (1) Point 1(d) to the Table to s 14 - that disclosure of the information could reasonably be expected to prejudice the supply to the agency of confidential information that facilitates the effective exercise its functions (point 1(d)); and (2) Point 1(h) to the Table to s 14 - that disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether commenced and whether completed) (point 1(h)). 60 The agency has not provided any evidence or material demonstrating how points 1(d) and (h) apply. Beyond relying on those points, rather than points 1(e) and (f), as in the decision, there is no explanation in submissions as to how those points are said to apply and no evidence with respect to them. . . . 63 The agency has not discharged its burden with respect to the existence of any public interest considerations against disclosure. I am not persuaded that any of them apply.
The Tribunal set aside the Council's decision and directed that all the information in email chains 1, 2 and 3 be disclosed to Ms Styles.

No evidence from the Tribunal proceedings at first instance filed in the Appeal Panel proceedings

At a directions hearing on 24 January 2024, the Appeal Panel directed the Council to lodge with the Tribunal and give to Ms Styles, "[a]ll evidence given to the Tribunal at first instance on which it is intended to rely". No evidence of that nature was provided. In General Manager, Workcover Authority of New South Wales v Law Society of New South Wales [2006] NSWCA 84, Hodgson JA stated at [3] and [4] that: 3 As regards the appeal concerning legal professional privilege, this appeal has to be determined in circumstances where WorkCover did not disclose to the Court the actual content of documents said to have been created for the dominant purpose of legal advice, and did not seek to establish the totality of its instructions which led to their creation. 4 In those circumstances, in my opinion, WorkCover could not succeed in this appeal on a question of law on the basis that the Appeal Panel's conclusion involved giving the wrong legal result on the facts of the case, because this was a case where, at best for WorkCover, the dominant purpose was not entirely clear, and WorkCover, having the onus of proof, did not disclose some relevant facts to this Court and did not prove others.
Whilst Ms Styles had brought the lack of lodged evidence to the Council's attention in her written submissions (at [9]), during the hearing, and without opposition from Ms Styles, we gave leave to the Council to provide the emails. The Council provided two bundles of documents: the unredacted copies of the emails the subject of these proceedings (Confidential Exhibit 1) and the redacted copies of those emails (Exhibit 2).
The Council did not seek to tender any other evidence or submissions provided to the Tribunal below and we have not taken any of that material into account.

Grounds of appeal on questions of law

A party is entitled to appeal "as of right" on a "question of law": NCAT Act, s 80(1)(b). The Council appealed on the following three grounds: 1. The Tribunal did not provide adequate reasons for finding that Section 14, Table 1(e) and (h) of the GIPA Act did not apply to the redacted and withheld information. 2. The Tribunal erred in declining to uphold the Appellant's claim for legal professional privilege. 3. The Tribunal erred in unreasonably and unjustifiably imposing a requirement for evidence to support a claim for legal professional privilege in view of and contrary to ss 3 and 38 of the NCAT Act.
The Council also sought leave to add a further ground of appeal on a question of law, namely that the Tribunal has asked itself the wrong question about the email referred to at 10(d) of the Tribunal's decision (email of 20 March 2023 at 2.20 pm from Eric Imbs to Ben Taylor, copy to Bruce McCann). Again, without opposition, we gave leave for the Council to amend the Notice of Appeal to rely on that ground.

Grounds of appeal on questions other than questions of law

A party needs to obtain the Appeal Panel's "leave" or permission to appeal on a ground other than a question of law: NCAT Act s 80(2)(b). In the Notice of Appeal, the Council sought leave to appeal "to adduce further evidence regarding the claim for Legal Professional Privilege". The Council filed a statement from Bruce McCann, General Counsel for the Council, dated 29 February 2024. During the hearing the Council clarified that the intention behind the Notice of Appeal was to seek leave only for the purpose of adducing this evidence. However, after further discussion, the Council sought leave to appeal on the merits. The Appeal Panel gave the Council permission to seek leave to appeal without requiring any formal amendment to the Notice of Appeal. Ms Styles did not oppose this course.
Leave to appeal was important to the Council because its grounds of appeal had been drafted without an eye to ensuring it had clearly identified questions of law.

Issues

On the basis of these grounds of appeal, the following issues arise. 1. Has the Council identified any questions of law and, if so, did the Tribunal err in relation to any of those questions? 2. Should the Tribunal give the Council leave to appeal on the merits of the Tribunal's decision and, if so, was the decision incorrect or not the preferable decision?

Has the Council identified any questions of law and, if so, did the Tribunal err in relation to any of those questions?

What is a question of law?

Following a body of decisions of the Supreme Court and Court of Appeal, the Appeal Panel has recently confirmed that a question of law in the context of s 80(2)(b) of the NCAT Act should be interpreted similarly to "a question of law alone" or a "pure question of law." It excludes questions of mixed fact and law and, of course, questions of fact: see for example Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338; Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141; Crystele Designer Homes Pty Ltd v Wood [2023] NSWCATAP 242; Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36; Commissioner of Police, NSW Police Force v Hogan [2024] NSWCATAP 77, citing, variously, Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223; Orr v Cobar Management Pty Ltd [2020] NSWCCA 220; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 (Thomas and Naaz).
The most recent support for that proposition in an analogous context comes from the decision of Kunc J in AW v WW (No 2) [2024] NSWSC 146. Whilst his Honour was interpreting cl 14(1)(b) of Sch 6 to the NCAT Act, the form and function of that clause, which provides for appeals from decisions of this Tribunal's Guardianship Division to the Court, is substantially the same as s 80(2)(b). In respect of his Honour's reasoning, the only factor which may differentiate the process of interpretation engaged in by his Honour was that an appeal under cl 14(1)(b) to the Court was from a "specialist division of the Tribunal" (at [53]) but we see no reason why the absence of that consideration should lead to a different conclusion when interpreting s 80(2)(b) of the NCAT Act.

Inadequate reasons

The Council submits that the Tribunal has failed to provide adequate reasons for the decision. According to the Council, the Tribunal did not explain why the evidence it provided to support the claims for legal professional privilege, and the public interest considerations against disclosure, was insufficient. In both respects, the Council's case was primarily that the unredacted emails "speak for themselves".
Citing Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 at [32], the Council submits that the Tribunal did not articulate the reasoning process that led to the conclusion it reached: Such reasons would include making findings on material questions of fact, referring to the evidence on which those findings were based, setting out the Tribunal's understanding of the applicable law and explaining the reasoning processes that lead the Tribunal to the conclusions it made.
The Council also relied on the following passage from Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254 at [66]: The Tribunal found that there was little or no evidence to support the Council's reliance on various public interest considerations against disclosure. The Tribunal came to that view without explaining why it rejected the detailed evidence provided by Destination NSW. The Tribunal should have explained to the parties why that evidence was not persuasive. The parties were unable to see, from the Tribunal's reasons, the extent to which its case was understood and accepted or rejected.
Simply alleging that the Tribunal's reasons are inadequate may not be sufficient to identify the particular or specific question of law that arises where the alleged inadequacy does not "breach a statutory condition of validity of the decision itself, so as to render the decision invalid": Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 at [30].
Whilst it is true that simply alleging that reasons are inadequate "raises" a question of law, and that may be sufficient where the parties and the Appeal Panel correctly understand what that allegation entails (STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 at [14] to [22]), it is preferable that the actual and specific question of law that it raises is identified with precision. That position is reinforced where the appellant is legally represented: Theophilas v Chief Commissioner of State Revenue [2016] NSWCATAP 111, at [24]; Thomas and Naaz, above, at [72].
In the absence of leave to appeal, the particular questions of law identified by the appellant are the subject matter of the appeal: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd, above, at [13] and the cases referred to there. Succinctly identifying the question the alleged inadequacy raises will also better turn the parties' attention to what question the Appeal Panel is actually answering, as an allegation that reasons are inadequate is all too often simply a challenge to the merits of the Tribunal's decision, for which leave to appeal is required.
The allegation of error here is so closely related to the Tribunal's determination of the facts of the case that any alleged inadequacy of reasons does not amount to a question of law alone: JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669; (2015) 256 A Crim R 447; PQR v Director of Public Prosecutions (NSW) [2020] NSWSC 731. Unlike the case of Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254, the Council did not provide detailed evidence to support its reliance on various public interest considerations against disclosure. Nor did the Council provide detailed evidence, other than the emails themselves, to support its reliance on legal professional privilege.
As to some of the related questions of law, being whether the Tribunal's reasons were "sufficient in law" (as that phrase was used in Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 by Basten JA at [23]) or met the Tribunal's obligation in respect of what the Tribunal was required to address under s 62 of the NCAT Act, the decision of the Tribunal at [37]-[70] clearly articulates the evidence before it and its findings, the law to be applied, and the reasoning process that led to its conclusions. Had those questions been identified as questions of law, no error would be established. It is also not possible to discern, from examining the reasons and the evidence lodged in the appeal, that some identified inadequacy or deficiency in the reasons shows that the Tribunal has constructively failed to exercise its jurisdiction by failing to deal with "a substantial, clearly articulated argument relying upon established facts": Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088; [2003] HCA 26 at [24]. The reasons also meet the required level of transparency to facilitate the appellant exercising its qualified right to appeal.

Declining to uphold claim for legal professional privilege

This ground of appeal does not identify a specific question of law.
A question of law relating to this issue may be whether the facts as found by the Tribunal necessarily brought the documents the Council seeks to withhold on the basis of legal professional privilege within the meaning of "information that would be privileged from production in legal proceedings on the ground of client legal privilege" so as to engage the conclusive presumption in cl 5, Sch 1 to the GIPA Act: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138, per Jordan CJ. However, even that formulation may be insufficient unless no other application of the law to the facts as found is reasonably open: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1.
We have considered the substance of the Council's submission on this ground when deciding whether to give leave to appeal on a ground other than a question of law.

Requirement for evidence to support a claim for legal professional privilege

The Council conceded during the hearing that this ground of appeal is not a question of law. Rather, it is a further basis on which leave to appeal on a ground other than a question of law was sought. We will consider the substance of the Council's submissions in that context.
As part of this ground of appeal Council submitted that when the Tribunal formed the view that evidence was required, it should have concluded that this was not an appropriate case to determine without an oral hearing. We do not agree with that submission because the Tribunal is not obliged to warn a party that insufficient evidence has been provided, even when a decision has been made to dispense with a hearing.
After acknowledging that cases may arise where the Tribunal falls into jurisdictional error by failing to enquire into factual matters which can readily be determined and are of critical significance to a decision, the Appeal Panel constituted by Principal Member Suthers alone in Gallagher v Northern NSW Local Health District [2023] NSWCATAP 245 at [48] said, relevantly: However, the Tribunal in making its decision was not at risk of falling into jurisdictional error in the absence of the evidence it identified as lacking. Nor could that evidence be said to be "critical" in a material sense to its ability to determine the application... It would cast an impossible burden on the Tribunal to ensure that every party presents all the probative information available to them in such a situation, even where it decides to dispense with a hearing.
We endorse that assessment and think it is apposite here.

Did the Tribunal ask itself the wrong question?

We gave the Council permission to amend the Notice of Appeal to add a ground of appeal on a question of law. That ground was whether the Tribunal had asked itself whether the redacted portions of the email identified at 10(d) of the Tribunal's decision (email of 20 March 2023 at 2.20 pm from Eric Imbs to Ben Taylor, copy to Bruce McCann) were subject to legal professional privilege rather than whether cl 1(e) to the Table to s 14 applies.
Whether the Tribunal asked itself the wrong legal question is a question of law. The Council alleges that the Tribunal addressed whether that email was subject to legal professional privilege, when it had asserted that it should not be disclosed on the basis of one of the public interests grounds. The email is redacted in Exhibit 2 in these proceedings, but we have no evidence as to the grounds on which Council redacted that information. Despite being directed to lodge with the Tribunal and give to Ms Styles all evidence given to the Tribunal at first instance on which it intended to rely, the Council did not lodge the statement of a Ms Roberts, the Schedule of documents or their written submissions below. In those circumstances, the Council has not established the factual basis to demonstrate error on this question of law.

Should the Tribunal give the Council leave to appeal on the merits of the Tribunal's decision and, if so, was the decision incorrect or not the preferable decision?

As the Council has not identified or established an error on a question of law, we will determine whether to give leave to appeal on the merits of the Tribunal's decision: NCAT Act, s 80 (2)(b). The general principles for granting such leave were stated by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84]: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
The first basis on which the Council seeks leave to appeal from the merits of the Tribunal's decision is that the Tribunal misunderstood the Council's case. The Council submits that the Tribunal's use of the terms "email chain 1, 2, 3 and 4" is "extremely concerning". The Schedule of documents is said to have listed four categories of documents in response to the four types of information requested by Ms Styles. According to the Council, it was not a description of the chain of emails between Council staff and each email should have been considered individually.
The Schedule of documents was not before the Appeal Panel. The index to the unredacted documents (Confidential Exhibit 1) divides the emails into four categories, or "chains" based on who sent and received the emails. Email chain 1 contains three emails between Mr Imbs, the Manager Governance, Integrity & Ethics and Matt Gould, the Mayor. Email chain 2 contains six emails between Mr Imbs, CEO Ben Taylor and Bruce McCann, General Counsel. Email chain 3 contains two emails between Mr Imbs and Mr McCann. On the basis of the evidence before us, the emails can appropriately be described as email chains because they are groups of emails with the same sender and recipients and represent an ongoing discourse about a central topic.
At [51] of the decision, the Tribunal states that: The first three emails in email chain 2, described in par 10(2)(a), (b) and (c) above, were not sent or copied to General Counsel. The fourth and fifth emails (par 10(2)(d) and (e)) were simply copied to General Counsel. They did not seek any advice from him. The sixth email (par 10(2)(f)) contains a comment from General Counsel which does not contain legal advice.
The Council submits that legal professional privilege was never claimed over the first three emails in email chain 2. Two were released in full and the other (dated 17 March 2023 at 5.39 pm) was the subject of a claim under cl 1(e) in the Table to s 14. Similarly, the email to which General Counsel was copied was not the subject of a claim for legal professional privilege as evidenced by the fact that the email referred to in 10(d) of the Tribunal's decision (sent on 20 March 2023 at 3.22 pm) was released in full to Ms Styles.
It is correct that the Tribunal found that certain emails were not sent or copied to General Counsel when there was no claim for legal professional privilege over those documents. They had been disclosed in full to Ms Styles. At [56], the Senior Member stated that he was not satisfied that email chains 2 and 3 are the subject of legal professional privilege. That was a broader finding than was necessary but that does not affect the legality or merit of the Tribunal's decision. The Tribunal did not go about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result. Leave to appeal on this ground is refused.
The second basis on which the Council seeks leave to appeal is that the Tribunal decided at [55] that there was insufficient evidence to establish either that the communications are subject to legal professional privilege or that any advice was provided by a lawyer to a client. According to the Council, the Tribunal should have upheld the Council's claim for legal professional privilege because the evidence it provided was sufficient to establish that claim. We understand the Council's submission to be either that there is a factual error that was unreasonably arrived at and clearly mistaken or that the Tribunal went about its fact finding process in an unorthodox manner or in such a way that it was likely to produce an unfair result.
The Tribunal's reasoning as to whether email chains 2 and 3 are the subject of legal professional privilege is at [49]-[56] of the decision which we have re-produced above. The Tribunal correctly stated the principle at [55] of the decision which we repeat here: Section 105 of the GIPA Act places the onus on the agency to demonstrate that email chains 2 and 3 are subject to legal professional privilege. This requires the agency to satisfy the Tribunal that each of the elements of s 118 of the Evidence Act is satisfied. Beyond assertions in par 19 of submissions in reply (which are not evidence) the agency has not provided any material that even attempts to satisfy that onus: not even to the point of demonstrating that General Counsel is a lawyer. The material provided by the agency, including the email chains themselves, does not satisfy me that the communications they contain are subject to legal advice privilege, or that the advice - such as there is - was provided by a lawyer to a client. The agency has therefore failed to discharge its onus under s 105.
It is apparent from this paragraph that despite stating that there is no evidence to support the claim for legal professional privilege, the Tribunal had regard to the documents themselves, which were in evidence.
Based on s 117 and s 118 of the Evidence Act, the elements of a claim for legal professional privilege in this case are that there is a confidential communication between a client and a lawyer for the dominant purpose of the lawyer providing legal advice to the client.
As the High Court said in Grant v Downs (1976) 135 CLR 674 at 689 "... in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence".
In Schreuder v Murray (No 2) [2009] WASCA 145 at [61]-[63] the Western Australian Supreme Court held that it is not sufficient for the party claiming privilege merely to assert the privilege and deliver the documents to the Court. In accordance with procedural rules that applied to that case, the party making the claim must list the documents and verify, by affidavit, the grounds of the privilege. If that is done, the claim for privilege can be tested.
Similarly, in claims for privilege under the GIPA Act, the documents for which privilege is claimed must be properly described and the facts relied upon as giving rise to the privilege must be set out.
In AWB Ltd v Cole (No 5) (2006) FCA 1234 at 44 Young J summarised the authorities on the nature of "legal advice" stating that the concept is "fairly wide" and "extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character". A communication may have more than one purpose. For example an in house lawyer may provide in one document both commercial advice and legal advice. In that context Allsop J held in Kennedy v Wallace [2004] FCAFC 337 at [157] that: A person can see a legal adviser and receive legal advice and commercial or other non-legal advice. The former will be privileged, the latter not. Difficulties of course can arise in demarcation. Difficulties can arise if the advice is intermingled. The resolution of the issue will generally be a question of fact.
The Tribunal went on at [54], to cite AWB Ltd v Cole (No 5) (2006) FCA 1234 as authority for the proposition that the starting point when considering a claim for legal professional privilege is the nature of the duties of an in house lawyer. At 44 and (10) Young J set out the following principles: (4) Where communications take place between a client and his or her independent legal advisers, or between a client's in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications: Kennedy v Wallace (2004) 208 ALR 424 at 442 [65] per Gyles J; affirmed on appeal, Kennedy v Wallace at 191-192 [23]-[27] per Black CJ and Emmett J. In Kennedy v Wallace, Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given. ... (10) Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth (1987) 163 CLR 54 at 96 per Dawson J; see also Deane J at 79-82. Some cases have added a requirement that the lawyer who provided the advice must be admitted to practice: see Dawson J in Waterford at 96; GSA Industries (Aust) Pty Ltd v Constable (2002) 2 Qd R 146 at 150; Glengallan Investments Pty Ltd v Arthur Andersen (2002) 1 Qd R 233 at 245. However, in Commonwealth v Vance (2005) 158 ACTR 47, the Full Court (Gray, Connolly and Tamberlin JJ) did not regard the possession of a current practising certificate as an essential precondition to the availability of legal professional privilege: at [23]-[35]. The same view was taken by Lee J in Candacal at 303 [99], by Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 at [111], and by Downes J in Re McKinnon and Secretary, Department of Foreign Affairs and Trade (2004) 86 ALD 780 at 785 [51].
These authorities support the Tribunal's approach to the nature and extent of evidence required for a party to discharge the onus of proving a claim of legal professional privilege. The Tribunal examined the documents and made findings of fact at [51]. As to the documents in email chain 2, legal professional privilege was only claimed in relation to the communication in the email dated 20 March 2023 at 3.55 pm (identified in 10(f) of the Tribunal's decision). The Tribunal found that it "contains a comment from General Counsel which does not contain legal advice". That is a finding of fact that was open to it. One of the elements of legal professional privilege has not been established. The Tribunal has not made a factual error or gone about its fact finding process in an unorthodox manner.
The two emails in email chain 3, over which privilege is claimed, were written on 21 March 2023, the day after the emails in email chain 2. The first email is from Mr Imbs to General Counsel, Mr McCann at 11.17 am and has the subject "CONFIDENTIAL: legal advice". It attaches draft letters in response to Ms Styles' code of conduct complaints. The second email from Mr McCann to Mr Imbs was sent three minutes later at 11.20 am.
The Tribunal's findings in relation to these emails are at [52] and [53] of the Tribunal's decision. Having read the email, the Tribunal found that the "advice does not impress as legal advice". That finding was not sufficiently definitive to dispose of the claim for legal professional privilege. The Tribunal went on to focus on another element of the claim: the relationship of independent lawyer and client. The Tribunal noted that the person providing the advice is identified as General Counsel and is presumably a Council employee. There was no evidence of the terms of that person's engagement, the nature of the duties or whether the General Counsel holds a current practising certificate.
The case law cited by Young J in AWB Ltd v Cole (No 5) (2006) FCA 1234 at 44 is authority for the proposition that while proof of admission to practice is necessary, possession of a current practising certificate is not an essential precondition to the availability of legal professional privilege. But even disregarding that requirement, the Tribunal had no evidence that a person signing an email as "General Counsel" is a lawyer or that their role was to provide independent legal advice.
The Council submitted that if the Appeal Panel finds that further evidence is required, then it has now been provided and the Appeal Panel may re-determine the matter based on that evidence. Mr McCann's statement attests to his status as a legal practitioner employed as in-house counsel. Generally, for further evidence to be admitted on appeal it must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing at first instance: Webb v Port Stephens Council [2023] NSWCATAP 133. That is the common outcome of the balance between "the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end" described in McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418 per Dixon C.J., Fullagar, Kitto and Taylor JJ at [14]. The Council concedes that this evidence was available and could reasonably have been obtained for the first instance proceedings.
Ms Styles claimed no direct prejudice to admission of the evidence in the appeal and did not seek to challenge the accuracy of Mr McCann's statement if it was admitted. If the only barrier to the Council succeeding on the claim of legal professional privilege was proof of the lawyer/client relationship, we may have been persuaded to give leave to appeal and admit that evidence. However, that was not the only barrier. Although not definitive, the Tribunal found at [52] that the "... advice does not impress as legal advice."
The Tribunal did not go about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result. The alleged error is no more than merely arguable and the actual content of the relevant emails is so inconsequential that no substantial injustice can be discerned if the Tribunal was wrong and the error is left uncorrected. That is an important issue in considering leave to appeal: Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9] per Basten JA (White JA agreeing), cited with approval in Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21.
Leave to appeal on this ground is refused.
The third basis on which the Council seeks leave to appeal is that the Tribunal decided there was insufficient evidence to make out any of the claims that there were public interest considerations against disclosure. We have noted that the Tribunal was puzzled by the Council's reliance on cl 1(e) and (f) of the Table to s 14 in their decision and on cl 1(d) and cl 1(h) in their written submissions at first instance. The Council's written submissions were not in evidence so we are unable to assess the accuracy of the Tribunal's understanding of the Council's case.
In submissions on appeal the Council contended that particular emails show deliberations by Council officers and recommendations given. It is unclear to the Council how further evidence supporting the public interest considerations against disclosure could have been provided, apart from statements by the Council officers who wrote the emails. The written submissions are said to clearly articulate the nature of the communications and why the claims under clause 1(e) and (h) of the Table to s 14 were made.
The Tribunal's reasoning is at [58]: 58 Once again, the agency has failed to provide any evidence in support of those contentions. Ms Robert's statement does not address why she reached those conclusions beyond asserting that she "deemed" the information to be such. Neither in her statement, nor in the decision itself, did she outline her reasons for reaching those conclusions. This is insufficient to discharge the onus on the agency.
The Tribunal refers to both lack of persuasive evidence and submissions at [60]. There is "no explanation in submissions as to how those points are said to apply and no evidence with respect to them". At [63], the Tribunal was not persuaded that any of the public interest considerations against disclosure apply.
We do not understand the Tribunal to have decided that without evidence the Council's claim would inevitably fail. Rather, the absence of any other evidence or submissions left the Tribunal unpersuaded after by having read the relevant emails. As with legal professional privilege, the party claiming that there is an overriding public interest against disclosure has the onus of proving that claim. All the facts relied on as giving rise to that conclusion must be established. Having established those facts, if the justification for the claim is not apparent, the agency must explain how those facts justify the claim.
The Tribunal did not go about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result. Nor does the allegation of error rise beyond the merely arguable. Leave to appeal on this ground is refused.
The appropriate orders are to dismiss the appeal on questions of law and refuse leave to appeal on the merits of the Tribunal's decision. We affirm the Tribunal's decision below. The effect of affirming the Tribunal's decision is that the Tribunal's order comes into effect, except that the information must be disclosed within 30 days of the publication of the Appeal Panel's reasons, not the Tribunal's reasons.
During the hearing of the appeal, we made orders under ss 64(1)(c) and (d) of the NCAT Act preventing publication of the content of the redacted information lodged in Exhibit 1 and disclosure to Ms Styles of that material to ensure the appeal was not rendered inutile. Having regard to our decision, we revoke those orders with effect 14 days after the date of these reasons.

Orders

For the reasons we have given, we make the following orders: 1. The appeal on questions of law is dismissed. 2. Leave to appeal on the merits is refused. 3. The decision under appeal is affirmed. 4. The following orders made on 5 May 2024 are revoked with effect 14 days after the date of these reasons: 1. Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the evidence in "Exhibit 1" of these proceedings is prohibited. 2. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the respondent of the evidence in Exhibit 1 in these proceedings is prohibited.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2024

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (43)

Cited By (20)