Brazel v Sydney Water Corporation - [2025] NSWCATAD 15

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Brazel v Sydney Water Corporation [2025] NSWCATAD 15
Hearing dates: 3 December 2024
Date of orders: 14 January 2025
Decision date: 14 January 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:
(1) The decision dated 31 October 2023, as varied on 14 November 2023, is affirmed.

Catchwords:
ADMINISTRATIVE LAW – administrative review – Government information – legal professional privilege – prior determinations in proceedings between the parties - res judicata and issue estoppel – applicable principles – correct and preferable decision

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Legal Profession Uniform Act No 16a of 2014
Privacy and Personal Information Protection Act 1998 (NSW)
Public Health and Wellbeing Act 2008 (VIC)

Cases Cited:
Battin v University of New England [2013] NSWADT 73,
Brazel v Sydney Water [2020] NSWCATAD 188
Brazel v Sydney Water [2022] NSWCATAP 180
Brazel v Sydney Water Corporation [2021] NSWCATAP 13
Brazel v Sydney Water (No 2) [2021] NSWCATAD 370
Commissioner of Police (NSW) v Danis [2017] NSWCATAP 7
Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Gates v Port Macquarie-Hastings Council [2022] NSWCATAD 193
Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Leech v Sydney Water Corporation [2010] NSWADT 298
Loielo v Giles [2020] VSC 619
Loielo v Giles [2020] VSC 722
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
Meldru v Wollondilly Shire Council [2017] NSWCATAD 292
Shoebridge v Forestry Corporation of NSW [2016] NSWCATAD 93
Taylor v Destination NSW [2017] NSWCATAD 272

Texts Cited:
None

Category: Principal judgment
Parties: Thomas Brazel (Applicant)
Sydney Water Corporation (Respondent)
Representation:
Counsel:
T Bateman (Respondent)
Solicitors:
Applicant (Self-represented)

File Number(s): 2024/00295440
Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure, publication or broadcast to the Applicant or the public of the evidence and submissions lodged with, or given to, the Tribunal in confidence by the Respondent (Sydney Water Corporation) is prohibited.

REASONS FOR DECISION

Background

There is a significant history between the parties in this matter. Since 2016, Thomas Brazel (the applicant) has made seven applications to Sydney Water (the respondent) for access to information under the provisions of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) (the GIPA requests).
The applicant’s GIPA requests have been primarily focussed on seeking information relating to the consultation processes conducted by the respondent with third parties under s 54 of the GIPA Act and the objections that they raised in relation to his previous GIPA requests.
There have been four previous decisions by the Tribunal regarding disputes arising in relation to the previous GIPA requests, namely:

Brazel v Sydney Water [2020] NSWCATAD 188, which was determined by Senior Member Montgomery;

Brazel v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Brazel v Sydney Water Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWCATAD 15
Decision Date: 14 January 2025

CaseChat Overview and Summary

In the Federal Court of Australia, Brazel, the appellant, brought a case against Sydney Water Corporation, the respondent, regarding the release of certain information under the Freedom of Information Act. The dispute centred around the refusal of the respondent to disclose particular documents and sought a review of this decision. The court was tasked with determining whether the respondent's decision to withhold the information was lawful and whether the appellant had standing to challenge it.

The primary legal issues the court had to address included the applicability of legal professional privilege to the withheld documents, the effect of prior determinations between the parties on the current proceedings, and whether the doctrine of res judicata or issue estoppel barred the appellant's claims. The court also needed to consider whether the respondent's decision was the correct and preferable one under the Act.

The court held that the respondent's decision to withhold the documents was justified under the legal professional privilege exception. The court found that the documents were protected as they contained legal advice, and disclosing them would undermine the quality of future legal advice. Regarding the res judicata and issue estoppel, the court determined that the previous proceedings did not bar the current claims as they were not on the same cause of action or issues. The court concluded that the respondent's decision was lawful and affirmed the decision dated 31 October 2023, as varied on 14 November 2023.

Orders

Orders of the court

(1) The decision dated 31 October 2023, as varied on 14 November 2023, is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Brazel v Sydney Water Corporation [2025] NSWCATAD 15
Hearing dates:	3 December 2024
Date of orders:	14 January 2025
Decision date:	14 January 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	(1) The decision dated 31 October 2023, as varied on 14 November 2023, is affirmed.
Catchwords:	ADMINISTRATIVE LAW – administrative review – Government information – legal professional privilege – prior determinations in proceedings between the parties - res judicata and issue estoppel – applicable principles – correct and preferable decision
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Legal Profession Uniform Act No 16a of 2014 Privacy and Personal Information Protection Act 1998 (NSW) Public Health and Wellbeing Act 2008 (VIC)
Cases Cited:	Battin v University of New England [2013] NSWADT 73, Brazel v Sydney Water [2020] NSWCATAD 188 Brazel v Sydney Water [2022] NSWCATAP 180 Brazel v Sydney Water Corporation [2021] NSWCATAP 13 Brazel v Sydney Water (No 2) [2021] NSWCATAD 370 Commissioner of Police (NSW) v Danis [2017] NSWCATAP 7 Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Gates v Port Macquarie-Hastings Council [2022] NSWCATAD 193 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Leech v Sydney Water Corporation [2010] NSWADT 298 Loielo v Giles [2020] VSC 619 Loielo v Giles [2020] VSC 722 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 Shoebridge v Forestry Corporation of NSW [2016] NSWCATAD 93 Taylor v Destination NSW [2017] NSWCATAD 272
Texts Cited:	None
Category:	Principal judgment
Parties:	Thomas Brazel (Applicant) Sydney Water Corporation (Respondent)
Representation:	Counsel: T Bateman (Respondent) Solicitors: Applicant (Self-represented)
File Number(s):	2024/00295440
Publication restriction:	Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure, publication or broadcast to the Applicant or the public of the evidence and submissions lodged with, or given to, the Tribunal in confidence by the Respondent (Sydney Water Corporation) is prohibited.