Buttrose v NSW Trustee and Guardian - [2025] NSWCATAD 107

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Buttrose v NSW Trustee and Guardian [2025] NSWCATAD 107
Hearing dates: 14 April 2025
Date of orders: 16 May 2025
Decision date: 16 May 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Falk, Senior Member
Decision:
The decision under review is affirmed.

Catchwords:
ADMINISTRATIVE LAW — Freedom of information — Access to information — refusal to deal with application for the same information — whether there are no reasonable grounds for believing the agency would make a different decision on an application for the same information — conclusive overriding presumption against disclosure — legal professional privilege — client legal privilege — death of the client — waiver

Legislation Cited:
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Evidence Act 1995
Government Information (Public Access) Act 2009
NSW Trustee and Guardian Act 2009
Succession Act 2006

Cases Cited:
Australian Workers’ Union v Registered Organisations Commissioner [2019] FCA 309
Buttrose v Buttrose, (Supreme Court (NSW) Case 2021/327367) unrep
Buttrose v NSW Trustee and Guardian [2023] NSWCATAD 165
Dunesky & Bay Wool Pty Limited v Elder (1992) 35 FCR 429
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405
Khoo v South Western Sydney Local Health District [2015] NSWCATAD 183
O’Rourke v Derbyshire [1920] AC 581
Re Londonderry’s Settlement [1965] Ch 918
Tenna v Di Lena [2020] WASC 426
Tommy v Western Australia (No 2) [2019] FCA 1551

Texts Cited:
None cited

Category: Principal judgment
Parties: Richard William Buttrose (Applicant)
NSW Trustee and Guardian (Respondent)
Representation: Self-Represented (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2024/00425354
Publication restriction: Pursuant to the order of the Tribunal made 14 April 2025 s 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the Respondent on a confidential basis. That material is not to be released to either the Applicant or the public.

REASONS FOR DECISION

Overview

Mr Buttrose (the Applicant) made an application to the NSW Trustee and Guardian (the Respondent) for access to a document under the Government Information (Public Access) Act 2009 (the GIPA Act).
Mr Buttrose previously sought access to the same document and access was refused by the Respondent. That document was the opinion of counsel acting for his mother in Supreme Court proceedings for the sanction of a compromise settlement. Mr Buttrose was a respondent in those Supreme Court proceedings.
The Respondent decided to refuse to deal with the application to access the document a second time and Mr Buttrose seeks review by the Tribunal of the Respondent’s decision.
Mr Buttrose wants the Tribunal to set aside the Respondent’s decision to refuse to deal with the application and order that he be given access to the document.
Because this is a review of a second application for the same document, the issue for determination is whether there are no reasonable grounds for believing that the agency would make a different decision. For the reasons which follow, the Tribunal has concluded…

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.

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Details

Case: [2025] NSWCATAD 107
Decision Date: 16 May 2025

CaseChat Overview and Summary

In the case of Buttrose v NSW Trustee and Guardian, the applicant sought access to documents under the Government Information (Public Access) Act 2009 (NSW). The dispute centred on the refusal by the respondent to provide the same information that had previously been denied. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether there were reasonable grounds to believe the respondent would make a different decision on a subsequent application for the same information. The court also had to determine if the conclusive overriding presumption against disclosure applied, given that the information was subject to legal professional privilege and client legal privilege, and whether these privileges survived the death of the client.

The court found that there were no reasonable grounds to believe a different outcome would result from a subsequent application for the same information. It was established that the documents in question were protected by legal professional privilege and client legal privilege. The court held that the privilege survived the death of the client, and therefore the overriding presumption against disclosure applied. Consequently, the refusal to provide the documents was affirmed.

The Supreme Court upheld the decision of the respondent not to disclose the documents, affirming the decision under review. The court's ruling emphasised the importance of maintaining the integrity of legal professional privilege and client legal privilege, even post-mortem, and the application of the conclusive presumption against disclosure in such contexts.

Orders

Orders of the court

The decision under review 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:	Buttrose v NSW Trustee and Guardian [2025] NSWCATAD 107
Hearing dates:	14 April 2025
Date of orders:	16 May 2025
Decision date:	16 May 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Falk, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW — Freedom of information — Access to information — refusal to deal with application for the same information — whether there are no reasonable grounds for believing the agency would make a different decision on an application for the same information — conclusive overriding presumption against disclosure — legal professional privilege — client legal privilege — death of the client — waiver
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Government Information (Public Access) Act 2009 NSW Trustee and Guardian Act 2009 Succession Act 2006
Cases Cited:	Australian Workers’ Union v Registered Organisations Commissioner [2019] FCA 309 Buttrose v Buttrose, (Supreme Court (NSW) Case 2021/327367) unrep Buttrose v NSW Trustee and Guardian [2023] NSWCATAD 165 Dunesky & Bay Wool Pty Limited v Elder (1992) 35 FCR 429 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 Khoo v South Western Sydney Local Health District [2015] NSWCATAD 183 O’Rourke v Derbyshire [1920] AC 581 Re Londonderry’s Settlement [1965] Ch 918 Tenna v Di Lena [2020] WASC 426 Tommy v Western Australia (No 2) [2019] FCA 1551
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Richard William Buttrose (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Self-Represented (Applicant) Crown Solicitor (Respondent)
File Number(s):	2024/00425354
Publication restriction:	Pursuant to the order of the Tribunal made 14 April 2025 s 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the Respondent on a confidential basis. That material is not to be released to either the Applicant or the public.