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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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 that there are no reasonable grounds and the agency’s decision should be affirmed. 

Background

Current application

6. Mr Buttrose made an application to the Respondent for access to information under the GIPA Act in September 2024, following the death of his mother.

7. On 9 October 2024 the Respondent decided to refuse to deal with Mr Buttrose’s application (the current application).

8. In refusing to deal with Mr Buttrose’s current application the Respondent relied on s 60(1)(b) of the GIPA Act. The grounds were that it had already decided a previous application made by Mr Buttrose for the same information and there were no reasonable grounds for believing that the agency would make a different decision on the current application.

Information sought by the Applicant

9. Mr Buttrose sought access to “Exhibit JCB-1” to an affidavit of Ms Brouwer (the document), prepared for proceedings in Buttrose v Buttrose, Supreme Court (NSW) Case 2021/327367 (the Supreme Court proceedings).

10. The Respondent commenced the Supreme Court proceedings on behalf of Mr Buttrose’s mother. Mr Buttrose was the second defendant to the Supreme Court proceedings.

11. The Respondent was appointed as financial manager for the mother under the NSW Trustee and Guardian Act 2009.

12. The document was an opinion of the mother’s Counsel provided to the Court for the purpose of seeking the Court’s approval of a compromise settlement. The document was referred to in the Associate’s Record of Proceedings of 25 July 2022 (the Court’s Orders) as a ‘Confidential Memorandum of Advice’ and the Court ordered that it be returned to the Respondent.

The first application for the document

13. Mr Buttrose made his first application for the document in December 2022. The first application was made before Mr Buttrose’s mother’s death. On 13 February 2023, the Respondent made a decision to refuse access to the document (first decision).

14. Mr Buttrose sought review by the Tribunal of the Respondent’s first decision.

15. The Tribunal affirmed the first decision of the Respondent to refuse access to the document in Buttrose v NSW Trustee and Guardian [2023] NSWCATAD 165 (Buttrose).

16. In Buttrose the Tribunal found at [108] that there was a conclusive presumption of an overriding public interest against disclosure under s 14 of the GIPA Act on the basis that:

1. the document was properly protected by Legal Professional Privilege under sch 1 cl 5 of the GIPA Act [at 106] and

2. the document was a document that had been objected to being produced in the Supreme Court proceedings on the basis that it was a privileged document, and that it was not compelled to be produced on the grounds of privilege such that sch 1 cl 5A of the GIPA Act applies [at 107].

Summary of the position of the Applicant and the Respondent

17. The Respondent maintains that its reasons for refusing access in the first decision as affirmed by the Tribunal in Buttrose continue to apply to the current application.

18. In the Respondent’s submission, neither the death of Mr Buttrose’s mother nor the passage of time displaces the finding of the Tribunal in Buttrose that there is a conclusive presumption against disclosure.

19. According to the Respondent then, there are no reasonable grounds for believing that the agency would make a different decision on the current application for the same document.

20. Mr Buttrose contends that the death of his mother prior to the current application, provides grounds for the Tribunal to decide to provide access to the document.

21. Mr Buttrose submits that s 117 and s 121 of the Evidence Act 1995 apply to entitle him to access the document.

22. In addition, Mr Buttrose contends that as he is a beneficiary of his mother’s Estate he has rights and interests which confer an entitlement to access the document as property of the Estate.

23. Mr Buttrose also contends that there are public interest factors which weigh in favour of granting access to the document.

Material before the Tribunal

24. The Respondent relied on written submissions and made oral submissions at the hearing.

25. The Respondent filed the following documents:

1. Submissions received 21 February 2025

2. Confidential Exhibit JCB-1

3. Confidential version of the decision in Buttrose.

26. Mr Buttrose relied on written submissions and Annexures to his submissions. Those Annexures were primarily Exhibits, transcript and orders from the Supreme Court proceedings. Mr Buttrose also made oral submissions at the hearing.

27. Mr Buttrose filed the following documents:

1. Administrative Review Application Form received 15 November 2024

2. Submissions with Attachments received 5 February 2025

3. Submissions in Reply with Attachments received 21 February 2025.

28. Neither party sought to give oral evidence or to call witnesses.

Procedural matter

29. On 14 April 2025 the Tribunal ordered that s 64 of the Civil and Administrative Tribunal Act 2013 (CAT Act) applies to prohibit the disclosure or publication of the material filed by the Respondent on a confidential basis. That material is the document the subject of the current application and the unredacted version of the Tribunal’s decision in Buttrose.

30. In accordance with s 64 of the CAT Act the Tribunal was satisfied that it was desirable to make the order over the material as the issue of whether to provide Mr Buttrose with access to the document is the subject of this review.

31. That material is not to be released to either Mr Buttrose or the public as the Tribunal has affirmed the decision of the Respondent.

Statutory framework

32. A decision to refuse to deal with an access application is a ‘reviewable decision’ under s 80(c) of the GIPA Act.

33. A person aggrieved by a reviewable decision may seek review of that decision by the Tribunal under s 100 of the GIPA Act.

34. The onus is on the Respondent to establish that the decision under review is justified (s 105(1)).

35. Under s 63 of the Administrative Decisions Review Act 1997 the Tribunal must decide what the correct and preferable decision is having regard to the material before it.

36. The Respondent made its decision under s 60(1)(b) which provides an agency may refuse to deal with an access application where it has already decided a previous application for the information concerned made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application.

37. Under s 9 of the GIPA Act a person who makes an access application for government information has a legally enforceable right to be provided with access to the information, in accordance with Part 4 of that Act, unless there is an overriding public interest against disclosure of the information.

38. Section 13 of the GIPA Act sets out a public interest test which requires a determination of whether ‘on balance’ there are public interest considerations against disclosure which outweigh the public interest considerations in favour of disclosure.

39. Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in sch 1.

40. Schedule 1 cl 5 of the GIPA Act relevantly provides a conclusive presumption 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.

41. Schedule 1 cl 5A of the GIPA Act provides a conclusive presumption against disclosure of information contained in a document that was a document a person objected to producing in any court proceedings on the grounds that the document was a privileged document, and was not compelled by a court to be given or produced on the grounds of privilege.

Consideration

42. The scheme of the GIPA Act is that a Respondent is not required to deal with repeat applications for the same information where there are no reasonable grounds for believing that the agency would make a different decision on the subsequent application: s 60(1)(b).

43. Having regard to the scheme of the GIPA Act, the current application and the previous decision of the Tribunal in Buttrose, the Tribunal is satisfied that the proper course on review of the current application is to consider s 60(1)(b).

44. For s 60(1)(b) of the GIPA Act to apply, first the Respondent must have already decided a previous application made by the applicant for the information.

45. Both parties accept that the Respondent had already decided a previous application made by Mr Buttrose where he sought access to the document.

46. Second there must be no reasonable grounds for believing that the Respondent would make a different decision on the current application. This matter is in dispute between the parties, specifically, whether cll 5 and 5A of sch 1 of the GIPA Act continue to apply.

47. Accordingly, in reaching the correct and preferable decision the Tribunal will consider whether the conclusive presumption against disclosure, found in Buttrose to apply to the first decision, continues to apply to the current application following the death of the mother.

48. Where a conclusive presumption against disclosure applies under s 14(1) of the GIPA Act, the Tribunal cannot balance public interest considerations in favour of disclosure.

Does the document remain subject to client professional privilege (legal professional privilege) for the purpose of sch 1 cl 5 of the GIPA Act?

49. As a preliminary matter, this Tribunal is satisfied that the document is properly characterised as attracting Legal Professional Privilege. The document is an opinion of the mother’s Counsel prepared on behalf of the mother and provided to the Supreme Court for the purpose of seeking the Court’s approval of a compromise settlement.

50. The Tribunal in Buttrose considered the common law and statutory principles of privilege at [33] to [47] and concluded at [106] that the document was properly protected by legal professional privilege.

51. What is in dispute in the current application is whether the death of the mother or other circumstances impact on whether the privilege continues to apply.

52. To decide whether the document remains subject to privilege, the Tribunal must determine whether privilege has survived the death of the client.

53. The Tribunal must also determine whether the death of the mother or any other circumstances, impact on who the client is. The client is “the person in whose favour the privilege exists” for the purpose of sch 1 cl 5 of the GIPA Act.

54. The Tribunal must then decide whether that person, the “client,” has “waived the privilege” in accordance with sch 1 cl 5 of the GIPA Act.

Who is the client in whose favour the privilege existed?

Position of the parties

55. The Respondent accepts that the “client” who held privilege in the document at the time of the first decision was Mr Buttrose’s mother.

56. Mr Buttrose also accepts that the mother was the “client” at the time of the first decision, albeit to make a different point.

57. Mr Buttrose contends that the Respondent was not the client and provided material to show that the preparation of the document was paid for by the mother.

58. Mr Buttrose also contends that the Respondent’s role as Financial Administrator terminated on the mother’s death in accordance with s 93 of the NSW Trustee and Guardian Act 2009.

59. Accordingly in Mr Buttrose’s submission the Respondent has no standing, rights or interests to assert privilege over the document.

Outcome

60. The Respondent is an ‘agency’ which held the document. An agency has an obligation under the GIPA Act to process an access request for documents that it holds in accordance with that Act, including considering whether the document sought is subject to a conclusive presumption against disclosure because the document is privileged.

61. As accepted by the parties and consistent with the decision of the Tribunal in Buttrose, the Tribunal is satisfied that the client in whose favour the privilege existed when the Respondent made its first decision is Mr Buttrose’s mother.

Has privilege survived the death and who is now the client?

Position of the parties

62. The Respondent cited a number of authorities in support of its submission that it is established that legal professional privilege survives the death of the client: Dunesky & Bay Wool Pty Limited v Elder (1992) 35 FCR 429; Tommy v Western Australia (No 2) [2019] FCA 1551, at [62] (Tommy); Australian Workers’ Union v Registered Organisations Commissioner [2019] FCA 309 at [22]-[23]; Tenna v Di Lena [2020] WASC 426.

63. The Respondent further submits that s 121(1) of the Evidence Act 1995 does provide for one circumstance where privilege will be lost with the death of the client, that is, where it is “evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died.”

64. In the Respondent’s submission, s 121(1) has no application in this case, where, referring to Buttrose at [15] - [17] the evidence is that the advice was prepared for the purpose of obtaining the approval of the Supreme Court to the proposed settlement of proceedings, brought by the Respondent on behalf of the mother, against two defendants including Mr Buttrose.

65. The Respondent also submits that some question might arise as to whether Mr Buttrose falls within the scope of para (f) of s 117(1) of the Evidence Act, which provides that a “client” includes a “successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.”

66. The Respondent’s submission is that this is not a matter that can be resolved by the Respondent or the Tribunal in the context of considering a GIPA Act application. Rather, any entitlement that Mr Buttrose may have to access the document would be best resolved in the context of the administration of the mother’s estate.

67. The Respondent also submits that privilege in the document may have passed to the Executor (Mr Butrose’s sibling) of the mother’s Estate who may waive privilege, referring to s. 117(1)(e) of the Evidence Act for assistance. That provision provides that if a client has died, the client is the “personal representative” of the client.

68. The Respondent referred the Tribunal to the Succession Act 2006, where the term “personal representative” is defined in s. 3 to mean “the executor or administrator of the estate of a deceased person.”

69. The Respondent’s case is that it is not aware of any conduct by the Executor that would be inconsistent with the maintenance of privilege, such that privilege could no longer be said to apply to the document. According to the Respondent then, the privilege that the Tribunal decided existed in Buttrose has not been displaced.

70. Mr Buttrose contends that s 121(1) of the Evidence Act applies. Mr Buttrose referred the Tribunal to Annexures to his submissions which included Exhibits in the Supreme Court proceedings. Mr Buttrose contends that the Annexures indicate that the settlement ordered by the Supreme Court was contrary to his mother’s intentions. The Tribunal understands Mr Buttrose’s submission to be that the document goes to the intentions of his mother.

71. Mr Buttrose also submits that s 121(3) of the Evidence Act applies to abrogate privilege. That provision provides that adducing evidence of a communication or document that affects a right of a person is not prevented. Mr Buttrose claims that his rights are affected.

72. Mr Buttrose also contends that s 117(1)(f) of the Evidence Act entitles him to access the document as “client” by virtue of being “a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.”

Outcome

73. Based on the established authorities referred to at [62] above, the Tribunal is satisfied that legal professional privilege generally survives the death of the client.

74. The parties have raised whether s 121(1) of the Evidence Act then applies, resulting in a loss of privilege with the death of the client.

75. The Evidence Act provides at s 4 that it applies to proceedings in NSW Courts. Chapter 3 contains s 121 of the Evidence Act and is concerned with whether evidence adduced in a proceeding is admissible. A NSW Court is defined in the Dictionary to include persons or bodies required to apply the laws of evidence.

76. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Evidence Act can therefore be instructive.

77. In this case the Tribunal is not concerned with deciding whether evidence contained in the document ought to be adduced in these proceedings. The Tribunal does not have before it a “question concerning the intentions, or competence in law, of a client or party who has died.” Rather it is concerned with whether Mr Buttrose is entitled to access the document in accordance with the GIPA Act.

73. If s 121(1) of the Evidence Act can be taken to be instructive to answer the question of whether Mr Buttrose is entitled to access the document in accordance with the GIPA Act, having reviewed the document (filed in these proceedings as confidential to the Tribunal), the Transcript of the Supreme Court proceedings of 25 July 2022 (Transcript) (Annexed to Mr Buttrose’s submissions received 13 March 2025) and the evidence referred to in Buttrose at [17], the Tribunal considers that the document is not one in which s 121(1) of the Evidence Act would be made out. It is not an appropriate characterisation of the document as one which concerns intentions. Rather the document is concerned with the provision of advice to the Supreme Court to assist the Court to decide whether approval should be given to a proposed settlement of the proceedings.

74. Accordingly the Tribunal is satisfied that the established legal principle that legal professional privilege survives the death of the client applies and has not been displaced by s 121(1) of the Evidence Act.

75. The Tribunal also considers s 121(3) of the Evidence Act, which does not “prevent the adducing of evidence of a communication or document that affects a right of a person.”

76. In this case the Tribunal is not concerned with deciding whether evidence contained in the document ought to be adduced in these proceedings but is concerned with whether access ought to be granted to the document in accordance with the GIPA Act.

77. The Respondent submits that based on an ordinary reading, the provision should be construed as being limited to evidence of the ‘fact’ of a document’s existence rather than its contents. While the Tribunal was not provided with any authorities on that point, the Tribunal sees merit in that construction.

78. In any event, even if s 121(3) of the Evidence Act is instructive, the Tribunal does not consider that the content of the document affects a right of Mr Buttrose in the context of a GIPA Act application. The document was provided to the Supreme Court to assist its decision to approve the proposed settlement. It was the Supreme Court’s Orders that affected Mr Buttrose’s rights, rather than the document.

79. Accordingly legal professional privilege has not been displaced by s 121(3) of the Evidence Act.

80. Nor does the Tribunal consider that Mr Buttrose can be regarded as the client as a “successor to the rights and obligations of a client” under s 117(f) of the Evidence Act. Section 117(1)(f) must be read in light of s 117(1)(e). On an ordinary reading of the statute it is paragraph (e) which defines who the client is upon death, that is “a personal representative of the client”, not paragraph (f).

81. In any event the Tribunal is not satisfied under s 117(f) of the Evidence Act that Mr Buttrose is a “successor” to “rights and obligations of a client” “being rights and obligations in respect of which a confidential communication was made.” The document does not confer rights and obligations. Rather it is a document prepared for consideration by the Supreme Court in deciding whether to approve a proposed settlement.

82. In the case of Tommy at [62] the Federal Court stated:

62 First, there is authority to the effect that legal professional privilege can survive the death of the client: see Dunesky v Elder [1992] FCA 311; 35 FCR 429 at 431-432 (Foster J). In Prus Grzybowski v Everingham [1986] NTSC 57; 44 NTR 7, Kearney J noted (at 12), relying on English authority, that the privilege survives the death of a client, and the question is then who can waive it, the answer given by the English authorities being the deceased’s “personal representative”: in that sense, the “successor” in law to the deceased person. That was the approach taken recently by Wheelahan J in Australian Workers’ Union v Registered Organisations Commissioner [2019] FCA 309; 164 ALD 214 at [22]-[25], with which I respectfully agree. That common law position has been codified in s 117(1)(e) of the Evidence Act.

88. Consistent with the authorities cited above at [87] and having regard to the position under s 117(1)(e) of the Evidence Act, the Tribunal is satisfied that the client in whose favour the privilege now exists is the Executor of the Will.

Has the client waived privilege?

89. Under sch 1 cl 5 of the GIPA Act client professional privilege can be lost where the person in whose favour the privilege exists has waived the privilege.

90. Privilege is waived if the client has acted in a way that is inconsistent with the maintenance of privilege.

Position of the parties

91. The Respondent is not aware of any conduct of the Executor that would be inconsistent with the maintenance of privilege.

92. Mr Buttrose did not make any submission that the Executor has acted inconsistently with the maintenance of privilege.

Outcome

93. Based on the material before the Tribunal, the Tribunal is satisfied that legal professional privilege in the document has not been waived. The Tribunal does not have any evidence before it that the Executor as the client has acted inconsistently with the maintenance of privilege.

94. Accordingly, in all of the circumstances, the Tribunal is satisfied that legal professional privilege that was found to apply to the document in Buttrose continues to apply. It has survived the death of the mother and has not otherwise been lost or been waived by the Executor as the client. Therefore the conclusive presumption against disclosure in cl 5 of sch 1 of the GIPA Act continues to apply.

Does the document continue to be a document a person objected to producing and was not compelled by the court to be produced or given on the grounds of privilege?

95. In relation to the Respondent’s first decision, the Tribunal found in Buttrose at [107] that cl 5A of sch 1 also applied, as it was a document that the Respondent objected to producing in the Supreme Court proceedings on the basis that it was a privileged document and it was not compelled by the Court to produce it on grounds of privilege.

96. As this Tribunal has found in relation to the current application that the conclusive presumption against disclosure in cl 5 of sch 1 of the GIPA Act applies, there is no need to consider whether cl 5A of sch 1 applies. However the Tribunal does so for completeness.

Position of the parties

97. The Respondent submits that cl 5A sch 1 continues to apply to the document as there is nothing arising from the death of the mother or the passage of time that would disturb the Tribunal’s finding in Buttrose.

98. Mr Buttrose did not address the application of cl 5A sch 1 in written submissions.

99. In oral submissions in answer to a question from the Tribunal, Mr Buttrose contends that cl 5A of sch 1 of the GIPA Act is not made out as the document was not objected to being produced in court proceedings but was offered to the Court by the Respondent acting for the mother.

100. Mr Buttrose referred to the Supreme Court proceedings Transcript at page 2 where His Honour Justice Lindsay stated that the document should be returned to the Respondent “so it can and should retain a copy of that if it is required for production at any time…”

101. Mr Buttrose argues that the document is now “required for production” under the GIPA Act.

Outcome

102. While the Tribunal sees no reason to go behind the decision in Buttrose, the Tribunal considers the arguments raised at the hearing for completeness.

103. The Tribunal has considered the Transcript of the Supreme Court proceedings referred to by the parties at the hearing. In particular, the Tribunal notes the interchange between the representative for NSW Trustee and Guardian (acting for the mother) and His Honour at page 2 of the Transcript.

104. When referring to the document, the mother’s legal representative did not specifically use the language of making an “objection” to producing the document or refer to the grounds of “legal professional privilege” as used in sch 1 cl 5A of the GIPA Act.

105. However the Tribunal is satisfied that cl 5A is made out as the document was described to the Court by the mother’s legal representative as “an opinion of counsel” (which the Tribunal has found attracts legal professional privilege) and it was made clear that “it is the intention of NSW Trustee and Guardian that that opinion of counsel be confidential” (in essence an objection to providing the document otherwise than in confidence).

106. The Court did not compel the production as it accepted the document as confidential. This is reflected in the Orders of the Court which referred to “the Confidential memorandum of Advice…being exhibit JCB-1 to the affidavit…”

107. In addition, a “requirement for production” ordinarily refers to a subpoena. Any such requirement for production would also be subject to any applicable rules allowing objection, including the application of privilege.

108. Accordingly, the Tribunal does not consider that His Honour’s reference to any future requirements for production impacts on the application of cl 5A of sch 1 in the context of a GIPA Act application.

109. Mr Buttrose has not pointed to any new or additional evidence to persuade the Tribunal that the conclusive presumption against disclosure in cl 5A sch 1 as found in Buttrose does not continue to apply.

110. The Tribunal is satisfied that the conclusive presumption against disclosure in cl 5A of sch 1 of the GIPA Act continues to apply.

Public Interest considerations in favour of disclosure

Position of the parties

111. The Respondent submits that the Tribunal ought not consider public interest considerations. Rather, if the Tribunal is not satisfied that the correct and preferable decision is to refuse to deal with the application, the appropriate course is for the Tribunal to remit the matter back to the Respondent for reconsideration and, in particular, to “deal” with the application.

112. Mr Buttrose points to the general public interest in favour of the disclosure of government information set out in s 12 of the GIPA Act and submits that the Tribunal ought to apply the public interest test in the GIPA Act.

113. Section 13 of the GIPA Act sets out a public interest test which requires a determination of whether ‘on balance’ there are public interest considerations against disclosure which outweigh the public interest considerations in favour of disclosure.

114. Mr Buttrose contends that he has personal factors in favour of disclosure as the son of the deceased: s 55 GIPA Act. Mr Buttrose submits that disclosure of information is favoured when a close family member is seeking access to information about a deceased relative, citing Khoo v South Western Sydney Local Health District [2015] NSWCATAD 183.

115. Mr Buttrose also refers to the Note to s 12(2) of the GIPA Act that provides an example of a public interest consideration in favour of disclosure, where disclosure ‘could reasonably be expected to reveal or substantiate that an agency has engaged in misconduct or negligent, improper or unlawful conduct.’ Mr Buttrose contends in oral submissions that the Respondent was negligent in acting as Financial Administrator for his mother.

Outcome

116. As the Tribunal has found that a conclusive presumption against disclosure applies, the Tribunal cannot consider the public interest considerations in favour of disclosure put forward by Mr Buttrose. This is because s 14 of the GIPA Act states that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in sch 1.

Does Mr Buttrose otherwise have an entitlement to access the document as a beneficiary?

Position of the parties

117. The Respondent submits that any issue of entitlement as a beneficiary cannot be resolved by the Tribunal in the context of considering an application for access to information under the GIPA Act. Rather it is a matter for the administration of the Estate.

118. Mr Buttrose contends that the document forms part of the Estate and as a beneficiary of the Estate he holds a proprietary interest in property that belongs to the Estate. Mr Buttrose cites Re Londonderry’s Settlement [1965] Ch 918, at 938, O’Rourke v Derbyshire [1920] AC 581, at 626-7 and Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, at 431 as authority that he is entitled to see, and has a proprietary interest in, ‘trust documents.’

119. Mr Buttrose relies on the Will of his mother (the Will) which provides that her Estate is to be held on trust by the Executor to divide amongst the beneficiaries (of which Mr Buttrose is one) as tenants in common in equal shares.

Outcome

120. Based on the information before the Tribunal, the Tribunal is not satisfied that whether or not Mr Buttrose has an entitlement to receive the document under the Will is relevant to whether he has a right to access the document in accordance with the GIPA Act.

121. The cases cited by Mr Buttrose do not, for the purpose of the Tribunal considering the application of sch 1 of the GIPA Act, impact on who the “client” is or whether the client has “waived” privilege in the document. Those issues have been considered above in these reasons for decision.

122. Accordingly the Tribunal does not give any further consideration to this submission.

Conclusion

123. For the reasons set out above the Tribunal has found that there is a conclusive presumption against disclosure. Client professional privilege continues to exist in the document and there is no evidence that the Executor as client has acted inconsistently with that privilege. In addition, the document continues to be one which was objected to being produced in court on the grounds of privilege and was not compelled by the Court to be given or produced on the grounds of privilege. Schedule 1 cll 5 and 5A of the GIPA Act found in Buttrose to apply to the first decision continue to apply to the current application.

124. Accordingly there are no reasonable grounds for believing that the Respondent would make a different decision on the current application.

125. The correct and preferable decision is therefore to affirm the decision of the Respondent to refuse to deal with the current application.

Order

1. The decision under review is affirmed.

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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

Decision last updated: 16 May 2025