Brazel v Sydney Water Corporation

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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

  1. 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).

  2. 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.

  3. There have been four previous decisions by the Tribunal regarding disputes arising in relation to the previous GIPA requests, namely:

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

  2. Brazel v…

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Details
Case
[2025] NSWCATAD 15
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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