Cahalan v Lane Cove Council

[2023] NSWCATAD 209

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Cahalan v Lane Cove Council [2023] NSWCATAD 209

Hearing dates:

24 May 2023

Date of orders:

4 August 2023

Decision date:

04 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information - whether overriding public interest against disclosure - confidential information - information provided in confidence - prejudice to court proceedings - competitive commercial - legitimate business, commercial, professional or financial interests – conclusive presumption - legal professional privilege

Legislation Cited:

Administrative Appeals Tribunal Act 1975 (Cth)

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995 (NSW)

Freedom of Information Act 1989 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Information Act 2002 (NT)

Local Government Act 1993 (NSW)

State Records Act 1998 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Outdoor Events) 2020

Cases Cited:

AFW v WorkCover Authority of NSW [2013] NSWADT 51

Auld v Independent Liquor and Gaming Authority [2017] NSWCATAD 160

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

CBL v Sydney Water Corporation [2016] NSWCATAD 287

Clear Wealth Pty Ltd v Kwong (No 2) [2012] NSWSC 1233

Commissioner of Police, New South Wales Police Force v Fine (2014) 87 NSWLR 1

Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24

Cruickshank v Commissioner of Police [2022] NSWCATAD 115

Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Fomiatti v Su (No 2) [2006] NSWADT 210

Guthrie v Lane Cove Council [2019] NSWCATAD 74

Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46

Honeysett v Director General, Department of Transport [2002] NSWADT 227

Hopson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 379

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Johnson v Wollondilly Shire Council [2022] NSWCATAD 182

Leech v Sydney Water Corporation [2010] NSWADT 298

Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet [2019] NSWCATAD 6

Luxford v Department of Education and Communities [2016] NSWCATAD 118

Male v Kempsey Shire Council [2022] NSWCATAD 39

Marrickville Council v Botany Council [2015] NSWCATAD 144

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

Pedestrian Council of Australia Limited v North Sydney Council [2014] NSWCATAD 80

Public Service Assn v Premier's Department [2002] NSWADT 277

Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182

Ross v Lane Cove Council (2014) 86 NSWLR 34

Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317

Shenhua Watermark Coal Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119

Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248

Taylor v Destination NSW [2017] NSWCATAD 272

Thomson v Commissioner of Police [2021] NSWCATAD 53

Transport for NSW v Searle [2018] NSWCATAP 93

YG & GG v Minister for Community Services [2002] NSWCA 247

Category:

Principal judgment

Parties:

Adrienne Cahalan (Applicant)
Lane Cove Council (Respondent)

Representation:

Counsel:
A Lim – Longueville The Village Pty Ltd atf the Longueville Village Unit Trust (LTV) & Pathways Aged Care Pty Ltd and Longueville the Village Pty Ltd (Aggrieved parties)

Applicant (self-represented)
Schmidt-Liermann Lawyers (Respondent)

File Number(s):

2022/00385953

Publication restriction:

Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent (Lane Cover Council) is prohibited.

REASONS FOR DECISION

Background

1. These proceedings concern a request that Adrienne Cahalan (the applicant) made to Lane Cove Council (the respondent) on 31 October 2022 for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act), in the following terms:

1. Lease and Agreement for Lease 266 Longueville Road, Lane Cover between Australian Unity and Lane Cove Council (circa 2016 original lease date unknown).

2. Varied Agreement for Lease – Australian Unity Lane Cover – 266 Longueville Road.

3. Executed Assignment of Lease and associated documents - 266 Longueville Road (Deed of Assignment).

4. Copy of correspondence between Australian Unity and LCC referred to in LCC minutes March 2022.

5. Copy of correspondence between Lane Cover Council, Australian Unity (AU) and/or Pathways relating to 266 Longueville Road between 1 January 2022 and 22 March 2022, relating to the assignment of the lease excluding correspondence relating to reconciliation and calculation of costs.

6. Confidential Relevant Notice – 266 Longueville Road.

7. Progress of Assignment to Pathways – 266 Longueville Road.

8. Pathways Residences Group Structure Memo.

9. Without prejudice – revised offer by Pathways.

10. Re: Response to Pathways revised offer – without prejudice.

11. Final to AU Lane Cove Council and Australian Unity Lane Cove Operations Company Pty Ltd Australian Unity – Respondent to request to vary payment terms.

12. Without prejudice letter to AU – removal of Easement 266 Longueville Road.

13. Confidential – Without prejudice – NDA Disclosure for Council Meeting.

14. Confidential – Without prejudice letter to Lane Cove Council regarding Standstill until 29 March 2022 – Council Executed.

15. Confidential - Without prejudice letter to Lane Cove Council regarding Standstill until 31 March 2022 – Council Executed.

16. Australian Unity responses to letters received from Lane Cove Council January-May 2022.

2. On 12 December 2022, the respondent decided to provide access to part of the information sought in item 1 of the GIPA request (s 58(1)(a) of the GIPA Act), but to refuse to provide access to the information sought in items 2 to 16 (inclusive) on the basis that there was an overriding public interest against its disclosure (s 58(1)(d) of the GIPA Act).

3. The respondent stated that it conducted reasonable searches as required by s 53 of the GIPA Act and that it identified the information sought by the GIPA request, as follows:

The information that you requested includes information relating to a business. I determined that it was reasonable to seek the views of Australian Unity and the Pathways Group given the potential risk of prejudicing the legitimate business, commercial, professional, or financial interests of Australian Unity and the Pathways Group.

Australian Unity was consulted specifically in relation to items 1, 2, 3, 4, 5, 6, 11, 12, 14, 15 and 16 of your GIPA request.

Australian Unity objected to the disclosure of the Deed of Assignment and Consent to Assignment of Lease between Council, Australian Unity and the Pathways Group relating to 266 Longueville Road and correspondence between Council and Australian Unity.

Australian Unity’s objections to the release of this information is on the basis that disclosure would reveal commercial-in-confidence material and prejudice Australian Unity’s legitimate business, commercial and financial interests (section 14, 4(b) & 4(d)). The information requested remains commercially sensitive to Australian Unity (including in relation to the terms of its dealings with the Pathways Group, a third party) and/or relates to confidential communications and discussions regarding matters of dispute between Australian Unity and Council and the respective positions of the parties regarding such matters or their potential resolution (section 14, 1(g) and 4(c)).

Pathways Group was consulted specifically in relation to items 5, 7, 8, 9, 10 and 13 of your GIPA request.

Pathways Group objected to the disclosure of the Deed of Assignment and Consent to Assignment of Lease between Council, Australian Unity and Pathways relating to 266 Longueville Road and correspondence between Council and Pathways.

Pathways Group’s objections to the release of this information is on the basis that disclosure would found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, reveal commercial-in-confidence provisions of a government contract, diminish the competitive commercial value of the information to the Pathways Group and prejudice commercial (business) interests of the Pathways Group (Section 14, 1(g), 4(b), 4(c) & 4(d)).

4. The respondent identified the following public interest considerations in favour of disclosure of the requested information:

1. the general public interest in favour of disclosure (s 12(1)); and

2. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability, or contribute to positive and informed debate on issues of public importance (s 12(2)), as it provides the community with information about the proceeds to be and/or that have been derived from the development and lease of public land.

5. The respondent identified relevant public interest considerations against disclosure and stated that to determine whether these are relevant to the requested information, it must consider whether they could reasonably be expected to have the effect outlined in the Table to s 14(2) of the GIPA Act. It then set out cll 1(e), 1(g), 3(a), 4(b), 4(c) and 4(d) to the table in s 14(2) of the GIPA Act.

6. The respondent stated that under s 9(1) of the GIPA Act, the applicant has a legally enforceable right to access the requested information unless there is an overriding public interest against its disclosure and under s 5 of the GIPA Act, there is a presumption in favour of disclosing government information unless there is an overriding public interest against its disclosure.

7. The respondent stated that in balancing the public interest test, it gave strong weight to the public interest considerations in favour of disclosure that it had identified and that it also gave strong weight to the public interest considerations against disclosure that it had identified.

8. The respondent also stated that it claimed legal professional privilege with respect to items 6, 13, 14 and 15 of the GIPA request and that cl 5 of Sch 1 of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of the information that attracts client legal privilege.

9. The respondent stated that it also considered and gave weight to the objections to disclosure that were received from Australian Unity and Pathways Group.

10. The respondent decided that there was, on balance, an overriding public interest against disclosure of the information requested in all items of the GIPA request other than item 1. However, it decided to partially release the information sought in item 1 of the GIPA request.

Application for administrative review

11. On 22 December 2022, the Tribunal received the current application for administrative review, which raised the following grounds:

The information sought does not prejudice a persons confidential information nor prejudice any person’s or corporation’s legitimate business, commercial, professional or financial interests. Nor are the other grounds for refusal justified. The information requested will soon be in the public domain – for the lease to be valid it must be registered at the Land Titles Office. There have been two other GIPA where the purchase price (total rental fee and conditions precedents were released) – these would be the most confidential terms in the AFL. Furthermore, the documents relate to the lease of Council land and this should be transparent.

Procedural matters

12. On 30 January 2023, Senior Member Higgins conducted a case conference at which the applicant appeared in person and Ms S Golding (Manager of Governance and Risk) appeared for the respondent. SM Higgins made the following orders:

1. By 10 February 2023, the respondent is to provide a copy of her orders made to the third parties and inform them of their right to be heard or joined as a party in these proceedings. In the event they wish to be joined as a party to these proceedings any such application is to be made by 10 February 2023.

2. She remitted the respondent’s decision dated 12 December 2022 to it for reconsideration by an officer who has not previously been involved in the events to which the information relates or dealt with an access application for the same information.

3. By 15 February 2023, the respondent is to advise the Tribunal and the applicant whether the decision has been affirmed, varied or set aside and if there is a new decision; and Provide a schedule of documents, identifying in tabular form each document and/or page of each document in dispute by number and giving details of its date, nature and author, and of the basis on which access was refused.

4. By 24 February 2023, the applicant is to tell the Tribunal and all other parties whether she is continuing or withdrawing her application. In the event that the applicant decides to continue her application she is to indicate what aspects of her application are pressed.

5. By 15 February 2023, the respondent is to give to the Tribunal, on a confidential basis, an unredacted copy of the documents in dispute. The documents are to be places in a sealed envelope marked “confidential non-disclosure documents”.

13. SM Higgins listed the matter for a further case conference on 6 March 2023.

14. On 6 March 2023, Senior Member Perrignon conducted a case conference at which the applicant appeared in person and Mr Schmidt-Liermann appeared for the respondent. Mr D Sinnetamby (referred to as a witness for the applicant) and Ms McLennan(Governance Officer of the respondent) also attended. SM Perrignon made the following orders:

1. The respondent is to file and serve its evidence and submissions, by 3 April 2023.

2. The applicant is to file and serve her evidence and submissions, by 24 April 2023.

3. The respondent is to file and serve all evidence in reply and a summary of legal arguments by 1 May 2023.

4. The applicant and respondent are to give to each other a list of all witnesses required for cross-examination by 8 May 2023.

15. SM Perrignon noted that AU and Pathways had been advised of the proceedings by the respondent and were given an opportunity to be represented, and that AU had “declined”. Despite notice from Pathways that it would attend the case conference, it did not do so. He listed the matter for hearing on 24 May 2023 with a time estimate of two days.

Internal review decision

16. On 15 February 2023, the respondent issued an internal review decision under the GIPA Act, and decided to provide access to some of the requested information, with respect to which there was no overriding public interest against disclosure of the information (s 58(1)(a) of the GIPA Act). This comprised the lease of 266 Longueville Road (item 4 in the schedule of documents)

17. The respondent stated that it consulted AU was specifically in relation to items 1, 2, 3, 4, 5, 6, 11, 12, 14, 15 and 16 of the GIPA request and that AU objected to disclosure of the deed of assignment and consent to assignment of lease between itself, AU and the Pathways Group relating to 266 Longueville Road and all correspondence between itself and AU.

18. The respondent stated that AU’s objections to the release of that information was predicated by the view that: (1) Disclosure would reveal commercial-in-confidence material and prejudice its legitimate business, commercial and financial interests (cll 4(b) & 4(d) of the Table to s 14(2)); and (2) The requested information remained commercially sensitive to AU (including in relation to the terms of its dealings with the Pathways Group (a third party) and/or relates to confidential communications and discussions regarding matters of dispute between AU and the respondent and the parties’ respective positions regarding those matters and their potential resolution (cll 1(g) and 4(c) of the Table to s 14(2)).

19. The respondent stated that Pathways Group was consulted specifically in relation to items 5, 6, 7, 8, 10 and 13 of the GIPA request. It objected to the disclosure of the deed of assignment and consent to assignment of lease between the respondent, AU and itself relating to 266 Longueville Road, and all correspondence between the respondent and itself.

20. The respondent stated that Pathways’ objections to the release of this information was on the basis that disclosure would found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, reveal commercial-in-confidence provisions of a government contract, diminish the competitive commercial value of the information to Pathways and prejudice commercial (business) interests of Pathways ( cll 1(g), 4(c) and 4(d) of the Table to s 14(2)).

21. The respondent stated that it conducted reasonable searches for the government information sought in the GIPA request and that it applied the public interest test by: (1) identifying any public interest considerations in favour of disclosure; (2) identifying any relevant public interest considerations against disclosure; and (3) deciding where the balance between them lies.

22. The respondent identified the following public interest considerations in favour of disclosure:

1. The general public interest in favour of disclosure (s 12(1)); and

2. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability, or contribute to positive and informed debate on issues of public importance (s 12(2). This is because the information provides the community with information about the proceeds to be and/or that have been derived from the development and lease of public land.

23. The respondent stated that it did not identify any personal factors of the applicant.

24. The respondent identified the following public interest considerations against disclosure:

Clause 1(e) of the Table to s 14(2), which provides:

1 Responsible and effective government

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)—

…

(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,…

Clause 1(g) of the Table to s 14(2, which provides:

1 Responsible and effective government

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)—

…

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, …

Clause 3(a) of the Table to s 14(2), which provides:

3 Individual rights, judicial processes and natural justice

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—

(a) reveal an individual’s personal information,…

Clause 4(b) of the Table to s 14(2), which provides:

4 Business interests of agencies and other persons

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—

…

(b) reveal commercial-in-confidence provisions of a government contract,…

Clause 4(c) of the Table to s 14(2), which provides:

4 Business interests of agencies and other persons

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—

…

(c) diminish the competitive commercial value of any information to any person,

Clause 4(d) of the Table to s 14(2), which provides:

4 Business interests of agencies and other persons

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—

…

(d) prejudice any person’s legitimate business, commercial, professional or financial interests,…

25. The respondent stated that it “balanced the public interests”, although I note that it did not state what weight it gave to each of the considerations, and that it decided that only some of the information could be released. However, with respect to the Registered Lease – Dealing AS133217, which was now in the public domain, it decided to release a copy to the applicant with the internal review decision.

The First Joinder Application

26. On 10 May 2023, the Tribunal received a joinder application pursuant to s 103(3) of the GIPA Act from Longueville The Village Pty Ltd atf the Longueville Village Unit Trust (LTV), which alleged that it could be an aggrieved party by a decision of the Tribunal.

27. The applicant objected to the joinder application.

28. On 10 May 2023, Principal Member Simon made the following orders:

1. LTV are to provide to the Tribunal and the other parties, any further written submissions and material they intend to rely on in relation to the application for them to be joined as a party to the proceedings by 11 May 2023;

2. The applicant and respondent are to provide to the Tribunal, each other and LTV, any written submissions and material they intend to rely on in relation to the application for LTV to be joined as a party by 15 May 2023;

3. The matter is listed for hearing on 16 May 2023 to determine the application to be joined.

Determination of the first joinder application

29. On 16 May 2023, Senior Member Gatland heard LTV’s application for joinder. Ms A Lim of counsel appeared for the LTV, the applicant appeared in person and Mr Schmidt-Liermann appeared for the respondent.

30. On 22 May 2023, SM Gatland issued a decision, which dismissed the joinder application. However, she ordered that LTV is permitted to appear and be heard at the hearing on 24 May 2023 pursuant to s 104(3) of the GIPA Act. She therefore ordered LTV to file and serve an outline of submissions by 4pm on 22 May 2023.

31. I note that this decision was released to the parties but not published.

The hearing

32. The matter came before me for hearing on 24 May 2023. The applicant appeared in person, Mr Schmidt-Liermann appeared for the respondent and Ms Lim appeared for LTV.

The reviewable decision

33. The parties agreed that the reviewable decision is the internal review decision dated 15 February 2023.

Second application for joinder

34. Ms Lim advised the Tribunal that she was also instructed to appear on behalf of Pathways, on the basis that it could be an aggrieved party under s 104(3) of the GIPA Act. She also stated that Pathways wished to be joined as a party to the proceedings and she sought to file an application for joinder.

35. The applicant opposed the further joinder application and the respondent neither consented nor opposed it.

36. The Tribunal refused the further joinder application.

37. Ms Lim then submitted that the decision made by SM Gatland in relation the first joinder application was “infected by jurisdictional error”.

38. The Tribunal stated that this matter involves the exercise of its administrative review jurisdiction and it does not have power to judicially review SM Gatland’s decision and an application for judicial review must be made to the Supreme Court of NSW. The Tribunal also stated that, as presently constituted, it does not have power to hear an “appeal” against SM Gatland’s decision.

39. The Tribunal refused to accept Pathways’ joinder application and it adopted SM Gatland’s reasons in relation to the first joinder application. I observed that the attempted joinder application by Pathways involved an even more significant delay between the Tribunal’s orders in January 2023 and the hearing date. I also observed that Pathways sought to make this joinder application after LTV’s joinder application was refused and that this appeared to be an attempt to re-agitate the matters that were argued before, and determined, by SM Gatland. In other words, it was an attempt to appeal against that decision by way of a back door.

40. Ms Lim formally sought an order from the Tribunal refusing the further joinder application and I made that order. Ms Lim then requested written reasons for my decision and I stated that written reasons would be provided in due course.

Reasons for refusal of Pathways’ joinder application

41. My reasons are as follows.

The Law

The Joinder Applicant’s right of appearance

42. Section 104 of the GIPA Act provides a mechanism by which some non-parties may exercise a right of appearance as distinct from joinder as a party. Section 104(3) is concerned with the right of appearance of persons who may be aggrieved by a decision of the Tribunal and it provides, relevantly:

(3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.

43. Section 104(3) does not require an aggrieved person to make an application unless their status as an aggrieved person needs to be determined. However, a person exercising a right of appearance does need to attend (or seek to be excused from attendance) the various case conferences, interlocutory and final hearings and observe the various directions about which they are notified. In this matter, Pathways did not attend any case conferences.

The Tribunal’s power of joinder

44. The Tribunal’s power to join a person or entity as a party to proceedings arises from s 44 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), and particularly s 44(1).

45. Section 44 provides:

44 Parties and intervention

(1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party.

(2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has—

(a) been improperly or unnecessarily joined, or

(b) ceased to be a proper or necessary party.

(3) For the avoidance of doubt, the member or members who constituted the Tribunal when it made an internally appealable decision cannot be made parties to an internal appeal against the decision.

(4) The following persons may intervene and be heard in proceedings to which they are not already parties—

(a) the Attorney General,

(b) a Minister who administers the legislation that confers or imposes functions the exercise (or purported exercise) of which are in issue in the proceedings,

(c) any other person who is authorised by this Act, enabling legislation or the procedural rules to intervene in the proceedings.

(5) A Minister may (from money otherwise lawfully available for the purpose) authorise the payment to a party to the proceedings in which the Minister or the Minister’s delegate intervenes such costs (if any) as the Minister considers were reasonably incurred by that party in relation to the proceedings as a result of that intervention.

46. The wording of s 44 of the NCAT Act indicates that the Tribunal’s discretion concerning joinder is broad and is not confined by r 27 of the Civil and Administrative Rules 2014 (NSW) (the Rules), which provides:

27 Parties to proceedings for general decision or administrative review decision

The parties to proceedings for a general decision or administrative review decision are—

(a) the applicant, and

(b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant)—the person or body in respect of whom the order or other decision is sought, and

(c) if the Attorney General or another Minister intervenes in the proceedings under section 44 of the Act—the Attorney General or Minister, and

(d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and

(e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules.

Note—

In proceedings for an administrative review decision, the administrator who made (or is taken to have made) the administratively reviewable decision concerned would be the person or body referred to in paragraph (b).

47. The notation in r 27(b) is that the administrator who made the administrative decision under review would be the person or body referred to in that sub-rule. This was considered by the Tribunal in Auld v Independent Liquor and Gaming Authority [2017] NSWCATAD 160 at [21] – [26].

48. The authorities indicate that in exercising its discretion under s 44 of the NCAT Act, the Tribunal should have regard to the statutory context of the decision. The relevant factors to the exercise of the discretion are summarised in Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 at [105] (Rice):

When deciding whether to exercise the discretion to join a person as a “party”, “the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case” are all relevant factors:… Whether prejudice would be caused by joinder, such as delay to proceedings, is relevant. Further, as previously stated by the Tribunal, “[w]hen exercising its powers under the [NCAT Act], including the power under s 44(1), the Tribunal is to seek to give effect to the guiding principle…to facilitate the just, quick and cheap resolution of the real issues in the proceedings. [citations omitted]

49. The authorities also suggest that the Tribunal should have regard to the considerations set out in s 44(2) of the NCAT Act regarding the removal of a party, as well as similar provisions contained in the Uniform Civil Procedure Rules 2005, r 6.19: Commissioner of Police v Fine [2014] NSWCA 327; Commissioner of Police v Fine [2014] NSWCATAP 24; and Rice.

50. In each of these authorities, particular focus was given to interpreting the term “proper or necessary”. In Fine at [38]- [41], the Court of Appeal said:

38. The power of joinder conferred by the Civil and Administrative Tribunal Act, s 44 is stated in general terms. It is a power to join a party "if the Tribunal considers the person should be joined as a party": s 44(1). The Tribunal also has the power to remove a party. The power of removal may be exercised if the person is "improperly or unnecessarily joined, or ... ceased to be a proper or necessary party": s 44(2). The Commissioner submitted that the power of joinder conferred by s 44(1) was to be read in conformity with the power of removal so that a party who was a "proper or necessary party" ought to be joined in the proceedings. That submission may be accepted. However, the question remains as to the meaning or, perhaps more correctly, the parameters of the expressions "proper" and "necessary", noting that the expressions are used in s 44(2) disjunctively and that a "proper" party may not be a "necessary" party.

39. A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings…The intent and effect of the joinder is to ensure that the decision-maker is bound by the determination of the Tribunal…

40. The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party. A Minister may have an interest in being a party. Reasons why this may be so would include where a particular decision affects the operation of a Minister's department or if there is a matter of public interest relevant to the decision to be made of which the Tribunal ought to be informed. This is recognised by s 44(4)(b) which enables a Minister or the Attorney General to intervene.

41. A party who is an applicant in the process before a decision-maker would also be a proper party. In the ordinary course, a successful applicant would have a relevant interest in the review proceedings and would, therefore, be a proper party to an appeal. In the case of the Commissioner, his role in bringing an application under s 116AE is not merely administrative. Nor is it a perfunctory or a convenient device to facilitate the making of a banning order.

51. In its decision in Fine, the Appeal Panel observed (at [35]):

Unlike the joinder provisions in some comparable legislation, such as s 30(1A) of the federal Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) of the Act contains no requirement that applicants for joinder should show that their "interests are affected," but empowers the tribunal to order a person to be joined as a party "if the tribunal considers that the person should be joined as a party". Nor does it require common questions of law and fact. It is similar to r 6.19 of the Uniform Civil Procedure Rules in granting a wide discretion, although it is even more broadly expressed than that rule.

52. In Ross v Lane Cove Council [2014] NSWCA 50, the Court of Appeal considered the tests for joinder and the development of joinder at common law and equity. The Court stated at [51] that it is well settled law that a person directly affected by the orders sought in a proceeding is a necessary party. However, the Court also stated, at [61] that since the underlying concern is natural justice, joinder is not always necessary. Although in exercising its administrative review jurisdiction the Tribunal is not a court, it is required to afford procedural fairness in its proceedings, which must be the central consideration in determining the joinder application.

Evidence and material facts

53. The Tribunal notes that Mr Skeritt has been described as both the sole director and secretary of LTV and the Managing Director of Pathways. On that basis, I am satisfied that it is appropriate to consider the evidence and submissions that were relied upon by LTV in support of the first joinder application.

54. SM Gatland observed that LTV argued to the effect that:

1. On 7 February 2023, the respondent emailed Mr Skeritt a copy of the Tribunal’s orders dated 30 January 2023, including details of the case conference on 6 March 2023;

2. On 8 February 2023, Mr Skeritt acknowledged the email, referred expressly to its content and the effect of the orders and said that if the matter continued to a case conference, he would like to attend with a legal representative and have the right to be heard. He also noted that there was to be a reconsideration of the GIPA Act decision, he asked to be informed of the outcome of that reconsideration “in advance, as, amongst other things, in such circumstances, we will need to consider whether to be joined to the proceedings”.

3. On 5 or 6 March 2023, the respondent emailed Mr Skeritt asking him to attend the case conference, which was due to commence. He replied that he was overseas and said that he was “unaware this was on today”. That day, and in response to the information that Mr Skeritt was overseas, the respondent informed him that the matter would now be going to a formal hearing in May and that it may ask him to attend.

4. On 6 March 2023, Mr Skeritt replied, “Thanks for letting me know. I will advise our lawyers.”

5. On 14 April 2023, the respondent sent a further email to Mr Skeritt, providing precise details of the hearing dates and location, and “to extend an invitation to Pathways to be heard at the hearing”. It asked Mr Skeritt to respond by 21 April 2023, but there was no evidence of any response by him and the Tribunal was informed by Ms Lee that the two pages of emails that preceded that particular exchange were deliberately not before the Tribunal “as they were irrelevant”.

55. SM Gatland noted LTV’s complaint that the Tribunal’s orders made on 30 January 2023 were “procedurally unfair”, because it was not present when the orders were made and they required the respondent to advise the third parties by 10 February 2023 and the third parties were required to apply for joinder by that date.

56. However, SM Gatland found that there was no lack of procedural fairness in the Tribunal making those orders and while requiring that advice to be given by the same day on which a joinder application was to be made is less than an amenable timetable, the fact is that the respondent sent Mr Skeritt notice of the orders by 7 February 2023. This meant that Mr Skeritt had at least two days in which to complete a standardised form comprising less than two pages and about ten text input boxes requiring information as anodyne as names of the parties, the name of the joinder applicant and their contact details. Therefore, it was entirely possible for LTV to have complied with the Tribunal’s orders and make a joinder application by 10 February 2023. LTV had not explained its failure to apply for joinder by the appointed date and SM Gatland held, relevantly:

36. …Instead, the submissions and evidence tendered showed that the joinder applicant spent the period of three months between 7 February 2023 and 9 May 2023 in which it either did nothing or prevaricated on the respective advantages and disadvantages of whether to apply to be joined as a party or apply to exercise a right to appear and be heard. In so doing, the joinder applicant disregarded the orders made by the Tribunal on 30 January 2023 that it was to make any application to appear and be heard or be joined by 10 February 2023 and made no application to extend or vary those orders. At the hearing of the application for joinder, the joinder applicant sought no extension in which to bring its application. Instead, as noted above, it submitted that the orders of 30 January 2023 were procedurally unfair and presumably, therefore, could be disregarded before making the extraordinary submission that the Tribunal “must” exercise its discretion to join it as a party.

57. SM Gatland noted that there was no explanation as to why “Pathways” failed to appear at the case conference on 6 March 2023, and while Mr Skeritt was overseas at that time, there was no explanation as to why another representative (such as a legal representative) could not have appeared. In any event, after 6 March 2023, both the applicant and the respondent adhered to the Tribunal’s orders.

58. SM Gatland was satisfied that LTV was a person who “could be aggrieved by a decision” of the Tribunal on review and it had a right to appear and be heard at the hearing commencing on 24 May 2023. She therefore ordered LTV to file and serve any evidence and submissions by 4pm on 22 May 2023. However, she determined that LTV was not a necessary party to the proceeding. In considering whether the joinder applicant was a “proper” party, she stated, relevantly:

48. In that regard, the joinder applicant submits that its interests are affected by the decision under review; therefore, it could be a party aggrieved by a decision of the NCAT. However, under the statutory regime provided by the GIPA Act third parties who may be aggrieved by a decision have a right to appear and be heard. Plainly, the legislature has considered that a third party is not automatically entitled or should, in ever case, seek to be joined as a party: CBL v Sydney Water Corporation [2016] NSWCATAD 287 at [26]; Forbidden Foods at [108]. While it is clear that participation under the GIPA Act, s 104(3) is not the same as being joined as a party, the legislature’s intention to limit the role of third parties in this way cannot be ignored. I note that GIPA Act, s 54(6), prescribes the specific circumstances in which a third party might be enabled to commence review proceedings. The intention of the legislative scheme is significant and should not be ignored.

49. The joinder applicant, in oral submissions, referred to a Tribunal decision in Marrickville Council v Botany Council [2015] NSWCATAD 144. That was a decision where the Tribunal exercised its discretion to join a third-party objector in an administrative review of a decision under the GIPA Act. I respectfully disagree with the observation in Marrickville at [34] that a third party joined as a respondent “may well need to take the lead role in the substantive proceedings”. In an administrative review of decisions made under the GIPA Act, the agency and no other respondent – potential or otherwise – bears the onus to justify its decision: GIPA Act, s 105. Moreover, on the facts of this case, the joinder applicant has elected, by delaying its entry into the proceedings until two weeks before the final hearing, cannot be said to have taken anything more than the most passive of roles.

50. I do not accept the submission of the joinder applicant that it was entitled to disregard order 1 of 30 January 2023 and take no step “until it was in possession of all the information in these proceedings”. The evidence before the Tribunal tendered by the joinder applicant indicates that it was fully aware of Ms Cahalan’s original request – since it had been consulted about some of the information considered within scope, it was aware the proceedings had commenced, and by 7 February 2023, it had complete information concerning the proceedings and what it was required to do to participate. When specifically asked, it was unable to say what steps had been taken by the joinder applicant to inform itself or take any step to apply for or be informed of the proceedings. Instead, it took a passive role despite, as late as mid-April 2023, being asked to assist the Council as a witness at the forthcoming hearing. No explanation, other than a desire to seek legal advice on all material before the Tribunal, was provided to explain the joinder applicant’s inaction. With regard to that explanation, it is apparent that the decision under review was substantially affirmed by the remitted decision of 15 February 2023. Therefore, nothing, factually, had materially changed since the decision under review was made on 12 December 2022, and the Tribunal was not taken to any evidence or material upon which the joinder applicant relied as its reason to alter its otherwise passive course. The paucity of this explanation is relevant to several issues, including whether the Tribunal would be assisted in the role it must undertake at hearing and consideration of the guiding principles set out in the Civil and Administrative Tribunal Act, s 26, but also whether, overall, the joinder applicant can be said to be a proper party to be joined to these proceedings.

59. SM Gatland noted that while the commercial interests of a joinder applicant are relevant, in circumstances where participation in proceedings is afforded by other means, this factor is not conclusive. She found that LTV failed to explain how being joined as a party would further safeguard its interests other than affording it a right of appeal and the lack of a proper explanation for its delay in making the application, and the absence of any evidence to establish what commercial interests are sought to be protected, leads the Tribunal to conclude that the possible affected commercial interests are not of sufficient significance to warrant the Tribunal exercising its discretion to join the LTV as a party.

60. SM Gatland determined that joinder was not required in order to afford procedural fairness to LTV and she observed that it was not precluded from seeking a later joinder in any appeal proceedings that may be commenced by the parties (as was the case in Forbidden Foods at [99] – [100] and [101].

61. Finally, SM Gatland determined that joining LTV as a party would not facilitate the just, quick and cheap resolution of the real issues in dispute.

62. In determining this joinder application, I am satisfied that Pathways was aware of the Tribunal’s orders regarding an application for joinder by 8 February 2023, but it did not seek to appear or be joined as a party to the proceedings until the morning of the final hearing. By that time, SM Gatland’s decision had been released to the parties and LTV.

63. In refusing to accept Pathways’ application for joinder as a party to these proceedings, I have adopted SM Gatland’s reasons dated 22 May 2023. In particular, I am satisfied that Pathways:

1. Is a person who could be aggrieved by a decision of the Tribunal on review: s 104(3) of the GIPA Act. Therefore, it has a right to appear and be heard at the hearing on 24 May 2023;

2. Could not be considered a necessary party to the proceedings;

3. Has not explained how being joined as a party would further safeguard its interests (other than affording it a right of appeal);

4. The lack of a proper explanation for the delay in making the joinder application and the absence of any evidence to establish what commercial interests are sought to be protected, leads the Tribunal to conclude that the possible effect on its commercial interests are not sufficiently significant to warrant the Tribunal exercising its discretion to join it as a party;

5. Joinder is not required to afford it procedural fairness and it is not precluded from seeking a later joinder in any appeal proceedings that may be commenced by the parties; and

6. Joinder will not facilitate the just, quick and cheap resolution of the real issues in dispute.

The evidence

64. The respondent relied upon the following evidence:

1. Affidavit of Emma McLennan affirmed on 3 April 2022. This was admitted and marked as Exhibit A.

2. [NOT FOR PUBLICATION]

65. The applicant relied upon an Affidavit of Darvan Sinnetamby affirmed on 24 April 2023.

66. The respondent objected to the second half of para 4, all of para 17 and all of para 19 of this affidavit. The applicant did not press those passages and they were deleted by consent. The amended Affidavit was admitted and marked Exhibit 1.

67. LTV and Pathways relied upon an affidavit of Timothy Webster sworn on 22 May 2023 including an Exhibit TJW-1. This was admitted into evidence and marked Exhibit 3PA.

68. [NOT FOR PUBLICATION]

Respondent’s opening argument

69. The respondent stated that the applicant initially sought administrative review of its decision dated 12 December 2022, but there was a subsequent review decision on 15 February 2023 and this is the reviewable decision in these proceedings.

70. The respondent stated that it relies upon cll 1(e), 1(g), 3(a), 3(b), 4(c) and 4(d) of the Table to s 14(2) of the GIPA Act and Sch 1 cl 5 (Legal Professional Privilege) as the relevant public interest considerations against disclosure of the disputed information. It said that it has partially disclosed a lease (with redactions) and had made full disclosure of a later lease.

Applicant’s opening argument

71. The applicant argued that the over-riding presumption under the GIPA Act is in favour of disclosure of government information and there are no overriding public interest considerations against disclosure. She asserted that the respondent has not filed any evidence justifying “the exception”.

72. By way of providing a brief background to the current dispute, the applicant stated that the respondent granted a lease to LTV and Pathways. The land was then re-zoned and there are three affected titles: Lot 1/321353, Lot 1/1227921 and Lot 2/1227921. The latter title is the main lot and is the subject of the main lease and it was previously the site of the Lane Cove Women’s Bowling Club. This facility was “special” to the community and it has endangered species upon it. The land was also previously used as playing fields.

Opening arguments from LTV and Pathways

73. Ms Lim stated that LTV and Pathways support what the respondent says about the public interest test. She also asserted that there are three confidentiality issues that arise, which are relevant to cl 1(g) of the Table to s 14(2) of the GIPA Act, as her clients hold a valuable commercial interest.

Evidence of Ms McLennan

74. In her affidavit, Ms McLennan deposed that she is a Governance Officer employed by the respondent and that she is authorised by the principal officer for the purposes of s 9(3) of the GIPA Act to decide the applicant’s GIPA request. She issued her decision on 21 December 2022.

75. Ms McLennan stated that in considering the GIPA request, she discharged the respondent’s obligations to take such steps as are reasonably practicable to consult with third parties (as required by s 54 of the GIPA Act). As a result of her consultations, LTV and Pathways objected to the release of the bulk of the information sought in the GIPA request on the grounds that disclosure of the information would found an action for breach of confidence against the respondent, in circumstances where information was provided to the respondent in confidence, and it would also reveal commercial-in-confidence provisions of a government contract.

76. Ms McLennan stated that she applied the public interest test set out in s 14 of the GIPA Act having regard for the public interest considerations for and against disclosure of the information sought in the GIPA request and she made her decision in accordance with the requirements of s 58 of the GIPA Act.

Ms McLennan’s oral evidence

77. The applicant required Ms McLennan to attend for the purposes of cross-examination. Accordingly, the respondent called her and she affirmed that the contents of her affidavit were true and correct.

78. In cross-examination, the applicant referred Ms McLennan to para 6 of her affidavit, where she said that two third parties objected to disclosure. She asked Ms McLennan if she thought that she should have provided her with more information? However, the Tribunal disallowed the question on the basis that it was not relevant to the matters in dispute.

79. The applicant then said that she had no further questions for Ms McLennan and Ms McLennan was released from further attendance.

Evidence of Mr Sinnetamby

80. In his affidavit, Mr Sinnetamby deposed that he is a resident of the Lane Cove Government Area. He asserted that the proposal to use the land at 266 Longueville Road, which was formerly crown public zoned recreational land, was first notified to residents and the community in December 2013, when a public hearing was held about re-zoning the land. He also asserted that the process to obtain a development application (DA117/2017) has taken nine years to be approved since the land was first re-zoned and then offered for lease by the respondent.

81. Mr Sinnetamby stated that the proposal to offer the land for a 99 year lease had received strong public opposition and that he has been actively involved with the community objecting to the development application because, among other things, he will lose all privacy in his back yard once a five-storey building with approximately forty floor to ceiling windows and eighteen balconies overlooking his back yard will be built just twelve metres away from his back fence. This is in a context where the public has no right of appeal on SNPP determinations, only a right to procedural review in the Land and Environment Court when the development application is approved.

82. Mr Sinntemaby observed that the respondent had acted “without transparency and with a lack of accountability and probity throughout the process of acting as the relevant authority”. This led to his request to the Governor of NSW dated 6 December 2022 to have a public enquiry on this matter and “unjust collusion between government agencies involved in the transaction”. He set out a lengthy background to the current dispute, which included:

1. In November 2016, after offering the land to tender, the respondent resolved to proceed with a 99 year lease agreement with AU to develop a seniors complex and aged care at 266 Longueville Road (the lease). The lease documents were executed in August 2017 and he annexed a copy of the lease agreement (marked “A”).

2. The lease agreement made provision for AU to make a payment for the lease agreement of $32 million once the development application gained approval by the consent authority (SNPP). He expressed the opinion that because of this clause, AU had significant leverage over the respondent and other parties involved in the consent process because the payment was due only on gaining consent of the DA. The respondent was the assessing authority and SNPP was the consent authority.

3. The DA came before the consent authority in July 2018. Because the DA was “highly incompatible and incomplete with the site”, the consent authority deferred its determination and requested to the DA, such as additional impact analysis. He annexed the record of Deferral (marked “D”).

4. In August 2019, AU applied for a Site Compatibility Certificate (SCC) for an updated DA.

5. In May 2022, the consent authority imposed conditions on the DA, “…effectively rejecting it in my opinion, by issuing a Site Compatibility Certificate which imposed a height compatibility clause or height limit. This meant that DA 117/2017 was rejected due to its non-compliance with the height compatibility clause.” He annexed a copy of the SCC (marked “E”).

6. SNPP’s determination was based on the recommendation given in the SCC Assessment Report dated May 2020 by the Department of Planning and Environment (a copy was annexed and marked “F”).

7. As a result, correspondence indicated that AU did not proceed to seek consent to the DA. This meant that the payment of $32 million to the respondent for payment of the lease which was due on approval of the DA by the consent authority was in jeopardy. In a letter dated 29 October 2020 to the Department of Planning and the Environment, GSA Planning stated that “Effectively this determination is tantamount to a refusal or a total redesign, potentially rendering the project non-viable”. He annexed a copy of this letter (marked “G”).

8. On 3 December 2020, AU reapplied for approval of the DA. This was one key area for which he sought a public enquiry into the conduct of the respondent and SNPP because it involved AU re-applying for a Site Compatibility Certificate on 3 December 2020 for the same DA lodged in April 2019. He stated that the respondent then changed its assessment and conditions of the DA without a valid basis and requested that the height compatibility clause in the SCC be removed and “any other amendments to facilitate the development as proposed”. A copy of that letter was annexed “and marked “J”);

9. Mr Sinnetamby annexed a copy of the respondent’s comments on the initial DA, which raised concerns of bulk and scale of the development, impact to views, over-shadowing and overlooking the backyards of residences of Richardson St W and a copy of an email dated 16 September 2019, which repeated the same assessment on the updated DA. He asserted that the Department of Planning and Environment issued an unauthenticated document “referred to as the SCC addendum report”.

10. SNPP then revoked the Site Compatibility Certificate of May 2020 and issued a new one - without the height compatibility clause. The respondent refused further public notification, despite two SCC assessments by the Department of Planning and the Environment and two SCC’s being issued and the first SCC being revoked by SNPP after the DA was last notified in May 2019.;

11. In a context where the Royal Commission for Aged Care and Safety had just been tabled (26/2/2020), which recommended only small to medium aged care facilities not of the size and scale of this DA and the draft State Environment Planning Policy (Housing) 2021, which was on exhibition for public comment and which imposed a reduction in allowable additional floor space ration for such a development, which would deem the DA non-compliant had it been in effect as described in memo from Montgomery Planning Solutions.

83. Mr Sinnetamby asserted that the payment of $32 million was due on 11 September 2021, but as at 21 March 2022, the payment had not been made and AU was 6 months in default. The respondent held a closed meeting regarding an update on the AU lease and the Minutes state that it did not agree to vary the lease and agreement terms with AC. The closed meeting did not record any reference to the assignee of the lease – LTV – “a private company associated with Pathways…” who have a development under construction at 4 Northwood Road Longueville “some 100 m from DA 117/2017”. He stated:

23. It is now apparent to me that from the schedule of documents in the Notice of Review Decision that LCC and PR were in communication as early as 15 March 2022 regarding the assignment of the lease even before the closed LCC meeting on 21 March 2022.

24. At some point, the lease was negotiated and an assignment to assign the lease from AU to PR was made. The assignment of lease took place in May 2022 at a point when Australian Unity was 8 months in default of a $32M lease payment and in dispute with LCC. Details of the dispute are concealed from the public and the document sought in the application relate to the assignment of the lease and what terms the assignment was made.

25. The LCC late agenda for meeting dated 19 May 2022 for the first time informs the public of the lease assignment to PR after it had taken place. It also mentions that PR intended to modify the DA to remove aged care component of DA 117/2017 to only provide seniors living and that the lease payment was already made. A copy of the later agenda meeting is annexed hereto and marked W.

26. In the negotiations with LCC and PR and unlike the vendor selection process for selection of AU as prescribed in the Council Agenda of July 2017 which is annexed hereto and marked [X], there was no tender/vendor selection process and no council resolution to proceed with $32M assignment of lease from AU to PR. There is no transparency on how this transaction took place and the community is in my opinion has a right of access to the documents that cover the assignment.

27. In July 2022, I sought information from AU relating to the assignment of the lease. AU responded in an ambiguous manner not providing information as to who introduced PR to LCC and the vendor selection process. A copy of my letter to AU and their response are annexed hereto and marked [Y] and [Z] respectively…

84. Mr Sinnetamby also stated that in the four years from when the AU agreement was executed with a lease value of $32M, the value of the land may have appreciated by $10M to $15M, based on the Valuer General’s assessment of an increase of approximately 50% of the median land values for vacant land within residential zonings for the LCC area, for the period 2019-2022. He annexed a copy of the Valuer General’s assessment for his own property. However, the respondent’s late agenda for the meeting on 19 May 2022 indicates that it received only $32.5M and $1.4M in interest on delay of payment. Therefore, the assignment of the lease did not represent value to the residents and the community as “it did not seek a possible $10M - $15M uplift in value which is unaccounted for and a loss to Lane Cove residents due to not conducting a tender process”. He asserted that the benefit to AU from the transaction is unknown and this transaction is also a key area “within the suggested scope for the public enquiry”.

85. Mr Sinnetamby asserted that there has been “strong public opposition and public concern about lack of probity and due diligence throughout the process of the assignment of the lease”. This was evidenced by references in a Public Hearing report by Commissioner Armstrong; a number of petitions to AU, PR, the Minister of Planning and the Chairman of SNPP opposing the building of units on recreation and calling for reinstating the height compatibility clause in the SCC; Objections submitted to the SNPP (listed on the respondent’s website); and Numerous newspaper articles (which he listed and annexed). He also raised other areas of concern regarding the respondent dealing with the matter in a way that ignored recommendations made by Rural Fire Services and Roads and Maritime Services. He concluded that on 24 April 2018, RMS reiterates “safety and traffic efficiency concerns due to the positions of the driveway”, but conceded that Longueville Road is a local road under the care of the respondent and it plays only an advisory role.

Mr Sinnetamby’s oral evidence

86. The respondent required Mr Sinnetamby to attend for the purposes of cross-examination and he was called and affirmed. He stated that the contents of his affidavit were true and correct, subject to “corrections”. The Tribunal notes that these “corrections” involved references to “the lease” being changed to refer to “the lease agreement”.

87. In cross-examination, Mr Schmidt-Liermann asked Mr Sinnetamby what he meant by “re-zoning”? He replied to the effect that the land was initially “community and recreational land”.

88. Mr Schmidt-Liermann put to Mr Sinnetamby that the relevant are only concerned with “reclassification” and not “re-zoning”, based on the recommendations in the Public Hearing report (found at page 18 Ex 1). Mr Sinnetamby did not respond.

89. Mr Schmidt-Liermann then sought to cross-examine Mr Sinnetamby about the payments made for the lease etc. However, the Tribunal ruled that this was not relevant to dispute that it is required to determine.

90. The applicant objected to Ms Lim cross-examining Mr Sinnetamby on behalf of LTV and Pathways. However, when the Tribunal asked the applicant to clarify the basis of the objection, she withdrew the objection.

91. Ms Lim asked Mr Sinnetamby about his motivation, and he replied to the effect that he “is focussed on public interest concerns about due diligence and to cover public objections”.

92. Ms Lim put to Mr Sinnetamby that he had made assertions and expressed opinions that were without proper basis. In particular, with respect to cl 4(d) to s 14(2) of the GIPA Act, she noted that he had written to numerous persons about the matter and she put to him that his writing to lenders etc. could injure AU’s commercial reputation etc. Mr Sinnetamby did not provide any explicit response.

93. The applicant did not seek to lead any evidence from Mr Sinnetamby in reply and he was then excused from the proceedings.

Confidential hearing and confidential evidence

94. The Tribunal determined that it was appropriate to conduct a confidential hearing pursuant to s 49(2) of the NCAT Act and s 107 of the GIPA Act and this was conducted in the absence of the applicant and Mr Sinnetamby.

95. [NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

96. [NOT FOR PUBLICATION]

97. [NOT FOR PUBLICATION]

98. [NOT FOR PUBLICATION]

99. [NOT FOR PUBLICATION]

100. [NOT FOR PUBLICATION]

101. [NOT FOR PUBLICATION]

102. [NOT FOR PUBLICATION]

103. [NOT FOR PUBLICATION]

104. [NOT FOR PUBLICATION]

105. [NOT FOR PUBLICATION]

106. [NOT FOR PUBLICATION] Ms Lim stated that the obligation of confidentiality cannot be overcome by way of redaction and the whole of the document is protected.

107. [NOT FOR PUBLICATION] With respect to the claim for legal professional privilege, Ms Lim stated that the documents speak for themselves and she referred to her clients’ written submissions on this issue.

[NOT FOR PUBLICATION]

108. [NOT FOR PUBLICATION]

109. [NOT FOR PUBLICATION]

110. [NOT FOR PUBLICATION]

111. [NOT FOR PUBLICATION]

112. [NOT FOR PUBLICATION]

113. [NOT FOR PUBLICATION]

114. [NOT FOR PUBLICATION]

115. [NOT FOR PUBLICATION]

116. [NOT FOR PUBLICATION]

117. [NOT FOR PUBLICATION]

118. [NOT FOR PUBLICATION]

119. [NOT FOR PUBLICATION]

120. [NOT FOR PUBLICATION]

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

4. [NOT FOR PUBLICATION]

5. [NOT FOR PUBLICATION]

6. [NOT FOR PUBLICATION]

7. [NOT FOR PUBLICATION]

121. [NOT FOR PUBLICATION]

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

4. [NOT FOR PUBLICATION]

122. [NOT FOR PUBLICATION]

[NOT FOR PUBLICATION].

123. [NOT FOR PUBLICATION]

124. [NOT FOR PUBLICATION]

125. [NOT FOR PUBLICATION]

126. [NOT FOR PUBLICATION]

127. [NOT FOR PUBLICATION]

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

4. [NOT FOR PUBLICATION]

Resumption of the open hearing

128. The Tribunal resumed the open hearing of the matter and heard the following open submissions.

Respondent’s open submissions

129. The respondent relied upon its “Outline of Verbal Submissions” filed on 22 May 2023, which I have summarised as follows.

1. After setting out a brief background and addressing the public interest test, it identified the public interest considerations in favour of disclosure of the disputed information as per the reviewable decision.

2. In relation to the public interest considerations against disclosure, it stated that in its original decision, it relied upon cll (1)(e), 1(g), 3(a), 4(b), 4(c) and , 4(d) of the Table to s 14(2) of the GIPA Act and cl 5 of Sch 1 of the GIPA Act (Legal Professional Privilege).

3. While it did not specifically refer to the internal review decision, I note that this did not identify any additional public interest considerations against disclosure of the disputed information.

Clause 1(e) of the Table to s 14(2) of the GIPA Act.

130. The respondent argued that the recent decision in Johnson v Wollondilly Shire Council [2022] NSWCATAD 182 (Johnson) is “instructive” and that cl 1(e) comprises two elements, namely: (1) one must look to see whether the withheld information concerns a deliberation, consultation, opinion or recommendation; and (2) consideration of whether the revelation of that information could reasonably be expected to prejudice a deliberative process of government or an agency. The application of this principle requires the Tribunal to be satisfied that the disclosure of the disputed information could reasonably be expected to reveal a consultation in such a way as “to prejudice a deliberative process”. The respondent must demonstrate how and why prejudice would arise if the disputed information was disclosed.

131. In Johnson, the Tribunal stated:

81. I accept that the information in issue was created as part of a consultation process. Ms Miles’ evidence shows that Sydney Water operates in competition with other service providers. I also accept that the release of this information could be reasonably expected to hinder future process of government or an agency because third parties may be reluctant to enter consultancy arrangements with Sydney Water if it is apparent that confidential information may be disclosed. The potential impact of that consequence is likely to be much greater for Sydney Water than for the Respondent. It should be given reasonable weight.

132. In Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317 (Seremitis), SM Goodman stated:

88. The words “in such a way as to” in cl 1(e) require that there be a connection between the revelation of the deliberation, consultation, opinion, advice or recommendation and the “prejudice” to a “deliberative process” of NSW Police: Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113 at [57]; Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 at [103].

133. In Seremetis, the Tribunal held that “prejudice” bears its ordinary meaning.

134. The respondent argued that to the extent that the disputed information contains a deliberation, consultation, opinion, advice or recommendation, the revelation of that information could reasonably be expected to prejudice a deliberative process of government or an agency. If it cannot be relied upon to maintain the confidentiality of consultations, negotiations and deliberations, this would invariably call into question its standing with its commercial partners and its ability to make decisions and negotiate commercial terms in the discharge of its statutory functions.

Clause 1(g) of the Table to s 14(2) of the GIPA Act

135. The respondent again relied upon the decision in Johnson, in which SM Montgomery stated, relevantly:

107. I agree that the release of the information provided to the Respondent by Sydney Water was provided in confidence. It is governed by the deed of confidentiality and it may reasonably be expected to found an action against the Respondent and possibly against Sydney Water for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence. In my view, this public interest consideration against disclosure applies to each of the documents that has been withheld in full and to the withheld information that has been redacted from the remaining documents. In my view this consideration should be given significant weight.

108. On balance, I am satisfied that the public interest against disclosure in clause 1(g) of the Table to section 14 outweighs those considerations in favour of disclosure to that redacted information.

136. The respondent argued that in this matter, cl 8.11 of the deed of variation (item 1 in the schedule of documents) and cl 17 of the deed of assignment of lease (item 3 in the schedule of documents) specifically provide for confidentiality and all email correspondence identified as being subject to confidentiality clearly highlights the confidential nature of the communications and documentation. The release of that information would clearly result in a breach of confidence.

137. In Male v Kempsey Shire Council [2022] NSWCATAD 39, the Tribunal stated:

272. …a reasonable person would assume that tender responses were documents that were provided to the Council “in confidence”. I am of the view that tenderers, relying upon … have a right to expect that their information will be kept confidential unless there is an overriding public interest in disclosure.

273. In Meriton at [112], the Tribunal found that where information was provided in reliance on representations that it would be treated as confidential, release of the information could reasonably found an action for breach of an “obligation of confidence”. I consider that the Council’s expectation that disclosure of the information could found an action against it for breach of confidence is reasonably held, and is not irrational, absurd or ridiculous in line with the reasoning in Cockroft and Solomon…

138. The respondent argued that it is imperative that it honours, and is seen to honour its contractual obligations of confidentiality and preserve its standing as a trustworthy business partner.

Clause 3(a) of the Table to s 14(2) of the GIPA Act

139. The respondent stated that the redaction of names and contact details from the disputed information could reasonably be expected to suffice if the information is to be disclosed.

Clause 4(b) of the Table to s 14(2) of the GIPA Act

140. The respondent again referred to the decision in Johnson, in which SM Montgomery stated, relevantly:

92. As it relates to Government contracts, ‘confidential information’ is defined in section 32(1) of the GIPA Act to include the ‘commercial-in-confidence provisions’ of the contract.

"commercial-in-confidence provisions" of a contract means any provisions of the contract that disclose--

(a) the contractor's financing arrangements, or

(b) the contractor's cost structure or profit margins, or

(c) the contractor's full base case financial model, or

(d) any intellectual property in which the contractor has an interest, or

(e) any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future.”

93. Having reviewed all of the evidence, I am satisfied that the deed of confidentiality between Sydney Water and the Respondent imposes obligations on each of the parties with respect to the retention of the confidentiality of information. I am satisfied that this information was provided to the Respondent in confidence. I am also satisfied that release of this document could reasonably be expected to reveal commercial-in-confidence provisions of a government contract.

141. The respondent stated that where the information contains commercial-in-confidence material, and the deed of variation and deed of assignment both contained explicit confidentiality provisions and obligations, the disclosure of the disputed information in contravention of the expectation that the information will be kept confidential (so as to reveal commercial-in-confidence material) is not warranted. The public interest considerations against disclosure must prevail.

142. The respondent also relied upon the Tribunal’s decision in Male:

82. The issue is whether the tender responses contain commercial-in-confidence provisions as defined in Schedule 4 to the Act. Clearly, those provisions which reveal price, product information and systems of a proprietary nature having intellectual property value, are commercially sensitive and confidential. For the reasons discussed in relation to cl 1(d) and cl 1(g), I am of the view that the tender responses which form part of the resulting process contracts variously contain elements of information that come within the definition of “commercial-in-confidence provisions” in Schedule 4 of the Act.

143. In this matter, the deed of variation and deed of assignment of lease contain commercially sensitive information which, if disclosed, would prejudice the party that supplied the information as a basis for contracting with the respondent.

Clause 4(c) of the Table to s 14(2) of the GIPA Act

144. The respondent argued that the decisions in Johnson, Male and Moran v Shellharbour City Council [2022] NSWCATAD 115, are instructive. While it conceded that aspects of the disputed information that contains commercially valuable information could be redacted, but this consideration against disclosure only forms one of a number of considerations against disclosure and there is a significant amount of information in both the deed of variation and deed of assignment of lease that would if disclosed, have the effect of diminishing its commercial value to the detriment of the parties.

Clause 4(d) of the Table to s 14(2) of the GIPA Act.

145. The respondent referred to the decisions in Johnson, Male and Moran as being “instructive”. In particular, it noted that in Johnson, the Tribunal stated:

88. I am satisfied that the release of the information could mean that those that deal with the Respondent will be less likely to provide confidential information knowing that the confidentiality of such information would not be maintained. This would lead to hesitation or unwillingness to deal openly and frankly with the Respondent. This could prejudice the future supply of confidential information not only for this development but also future development and prejudice the effective exercise of the functions of the Council and Sydney Water.

89. In my view, the public interest considerations against disclosure in clause 4(c) and clause 4(d) should be given significant weight. On balance, I am satisfied that the public interest against disclosure outweighs those considerations in favour of disclosure.

146. Further, in Moran, the Tribunal stated:

125. When considering clause 4(d), the Tribunal must be satisfied that there are reasonable grounds for an expectation that the disclosure of the information could reasonably be expected to prejudice legitimate business, commercial, professional or financial interests: see Meriton Property Services Pty Limited & Ors v Urban Growth at [148].

126.In Hurst v Wagga Wagga City Council [2011] NSWADT 307 the Tribunal found that ‘prejudice’ meant ‘to cause detriment or disadvantage’.

127. In Shenhua Watermark Co Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119, the Tribunal found when assessing the public interest consideration at [45]:

The public interest against disclosure in cl 4(d) is more broadly framed than that in cl 4(c) as it refers to legitimate business, commercial, professional or financial interests. The important feature of the clause is whether a disclosure of that information could reasonably be expected to prejudice those interests.

147. The respondent argued that the Standstill letters and communications (items 13, 15, 16 and 17 of the schedule of documents) are particularly captured by cl 4(d). It flagged thus clause as a significant consideration against disclosure.

Clause 5 of Schedule 1 of the GIPA Act – Legal Professional Privilege

148. The respondent stated that item 14 of the schedule of documents is “excluded as a right and obligation at law on the basis that it is subject to legal professional privilege”. It relies upon client legal privilege as the term is defined rather than the common law definition. However, that term is subject to the operation of the Evidence Act 1995 (NSW) (the Evidence Act).

149. The respondent stated that, broadly framed, ss 118 and 119 of the Evidence Act provide that evidence disclosing legal advice or confidential communications protected by client legal privilege is not to be adduced.

150. The corollary of this is seen through the lens of s 131A of the Evidence Act, as articulated in cl 5(1) of Sch 1 of the GIPA Act, is that the information should not be released if, on objection by the respondent, and having regard to the balancing test that must be applied under the GIPA Act, the release of the information would result in disclosure of either:

1. A confidential communication made between the client and the lawyer, or

2. Be a confidential communication made between two or more lawyers acting for the client; or

3. The contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client; or

4. A confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

5. The contents of a confidential document (whether delivered or not) that was prepared for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the Court), or an anticipated or pending Australian or overseas proceeding, in which the client is, or was or might have been, a party.

151. The respondent argued that the disputed information is captured by ss 118 and 119 of the Evidence Act and there is a conclusive presumption of an overriding public interest against its disclosure. The Tribunal should review the disputed information and be satisfied that the claim to client legal privilege is established under cl 5 of Sch1 of the GIPA Act.

152. The respondent concluded that on the application of the public interest test, the Tribunal should conclude that the disputed information has been properly withheld on the basis that the public interest considerations against disclosure outweigh those public interest considerations in favour of disclosure.

Applicant’s submissions

153. The applicant filed written submissions on 24 April 2023, in which she identified that the Tribunal must determine two issues:

1. Whether there is a presumption in favour of disclosing the disputed information to her; and

2. Whether in making the decision to withhold the disputed information, the respondent properly applied the public interest test.

154. The applicant argued that the Tribunal should find that there is a presumption in favour of disclosure of the disputed information and that the respondent has not properly applied the public interest test. Therefore, the disputed information should be disclosed.

155. The applicant stated that the object of the GIPA Act is to open government to the public and, in doing so, maintain and advance a system of responsible and effective representative democratic government that is open, accountable, fair and effective. She stated, relevantly:

17. …For the reasons set out below and taking into account the sworn evidence of Darvan Sinnetamby, we illustrate why the release of the documents to the applicant is essential to advance a system of government that is open, accountable, fair and effective and to assist me to exercise my legal rights.

156. The applicant argued, erroneously in my view, that the respondent had not fulfilled its obligation to transparently explain the reasons for its decision to withhold the disputed information. She stated that the reviewable decision did not demonstrate how any of the clauses relied upon from the Table in s 14(2) of the GIPA Act apply to the disputed information, nor had any third party who objected to the release of the disputed documents. However, I note that this submission pre-dated the first joinder application and the appearance of both LTV and Pathways at the hearing. She noted that the respondent bears the onus of demonstrating why the disputed information should not be disclosed.

172. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".

173. Section 13 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 against disclosure.

174. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and:

1. identify the public interest in favour of disclosure (s 12);

2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and

3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.

178. Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an “overriding public interest against disclosure”: s13.

179. Section 14 relevantly provides:

14. Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

180. Clause 1(e) of the table to s 14(2) provides:

1. 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)—

…

(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, …

181. Clause 1(g) of the table to s 14 provides:

1 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) —

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

182. Clause 3(a) of the table to s 14(2) provides:

3 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—

(a) reveal an individual’s personal information,

183. Clause 4(b) of the table to s 14(2) provides:

4 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—

(b) reveal commercial-in-confidence provisions of a government contract, …

184. Clause 4(c) of the Table to s 14(2) provides:

4 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—

(c) diminish the competitive commercial value of any information to any person, …

185. Clause 4(d) of the table to s 14(2) provides:

4 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—

(d) prejudice any person’s legitimate business, commercial, professional or financial interests,

186. While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104]. Subsections 15(a) - (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure aim of the GIPA Act.

187. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).

188. Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows:

53. Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.

189. Section 55 of the GIPA Act refers to “personal factors” that may be brought into consideration with respect to an agency’s determination of whether there is an overriding public interest against disclosure of information. This provides:

55. Consideration of personal factors of application

(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section—

(a) the applicant’s identity and relationship with any other person,

(b) the applicant’s motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

190. Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made “to the world”.

191. Section 104 of the GIPA Act has previously been set out in this decision in relation to the joinder applications by LTV and Pathways.

192. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).

193. Section 107 of the GIPA Act provides:

107 Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of—

(a) the public and the applicant, and

(b) the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

194. Clause 5 of Sch 1 of the GIPA Act provides:

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.

195. Clause 5A of Sch 1 of the GIPA Act provides:

5A Privilege generally

It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a document that, in response to a court order, subpoena or otherwise—

(a) was a document a person objected to producing in any court proceedings on the grounds that the document was a privileged document, and

(b) was not compelled by a court to be given or produced on the grounds of privilege.

Public interest considerations in favour of disclosure

196. Contrary to the applicant’s submissions, the reviewable decision identified relevant public interest factors in favour of disclosure of the disputed information. I agree with those public interest considerations and while the reviewable decision does not indicate what weight the respondent gave them, I am satisfied that they should be given strong weight.

Public interest considerations against disclosure

197. The respondent contends that the public interest considerations against disclosure, which are set out in the table below, outweigh those in favour of disclosure.

Item	Description	Considerations against disclosure
1	Deed of variation of agreement for lease between the respondent and AU dated 9/4/2019	Cll 1(g) & 4(d)
2	Scan of respondent-executed but unregistered lease with AU proposed to commence 11/09/2021 and terminate 10/09/2120	Cll 4(d) & 3(a)
3	Executed deed of assignment of lease and associated documents dated 16/05/2022	Cll 1(g), 4(b) & 4(d)
5	Email and letter dated 10/5/22 from the respondent to AU re: lease and agreement for lease of 266 Longueville Road, Lane Cove	Cll 1(e), 1(g) & 4(d)
6	AU letter dated 25/3/22 confidential relevant notice – 266 Longueville	Cll 1(e), 1(g) & 4(d)
7	Email from Pathways to the respondent dated 27/3/22 re: progress of assignment to Pathways – 266 Longueville Rd	Cll 1(e), 1(g), 4(b) & 4(d)
8	Email from Pathways to the respondent dated 27/4/22 re: Pathways Residences Group Structure Memo and attached letter	Cll 1(e), 1(g), 3(a), 4(b), 4(c) & 4(d)
9	Email from Pathways to the respondent dated 17/3/22 re: response – without prejudice & email response dated 17/3/22 from the respondent to Pathways – without prejudice	Cll 1(e), 1(g), 4(b) & 4(d)
10	Email dated 15/3/22 from Pathways to the respondent – re: without prejudice	Cll 1(e), 1(g), 4(b) & 4(d)
11	Email and attached letter dated 24/3/22 – from the respondent to AU regarding request to alter payment arrangement	Cll 1(e), 1(g), 4(b) & 4(d)
12	Email and attached letter dated 22/3/22 – without prejudice re: easement documentation 266 Longueville Road	Cll 1(e), 1(g) & 4(b)
13	Email 21/3/22 confidential – without prejudice legal advice re: 266 Longueville Road for respondent’s meeting	Cll 1(g), 3(a), 4(b), 4(c) & 4(d)
14	Email dated 18/3/22 and memo of confidential legal advice re: 266 Longueville Road	Cl 5 of Sch 1
15	Confidential without prejudice letter to the respondent regarding Standstill until 29/3/22 – respondent executed	Cll 1(g) & 4(d)
16	Letter dated 23/2/2022 – confidential – without prejudice letter to the respondent regarding Standstill until 31/3/22 – Respondent executed	Cll 1(g) & 4(d)
17	AU letter dated 29/3/22 & 30/3/22 responses to letters received from the respondent	Cll 1(g) & 4(d)

Clause 1(e) - Items 5, 6, 7, 8, 9, 10, 11 and 12

198. Based upon the decision in Johnson, I note that the Tribunal must decide whether the disputed information concerns a deliberation, consultation, opinion or recommendation, and whether revealing that information could reasonably be expected to prejudice a deliberative process of government or an agency. The respondent must demonstrate how and why prejudice would arise if the disputed information was disclosed.

199. Based upon the evidence before me, I am satisfied that cl 1(e) applies the disputed information that this consideration should be given reasonable weight.

Clause 1(g) – Items 1, 5, 6, 7, 8, 9, 10, 11, 13, 15, 16 and 17

200. In Tallawoladah, the Tribunal determined that the words “found an action for breach of confidence” should be interpreted as referring to a legal action for breach of an obligation of confidence. In Lock the Gate Alliance v Department of Planning and Environment and Anor [2019] NSWCATAD 6, SM Ransome stated at paragraph [139]:

In considering the first limb of cl (1)(g) the Tribunal has referred to Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 where it was held that the words "found an action of breach of confidence” in the Queensland freedom of information legislation should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action:

1.  a cause of action for breach of an obligation of confidence;

2.  a cause of action for breach of a contractual obligation of confidence;

3.  a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence.

201. Further, in Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277 at [53], the Tribunal identified five matters that must be established for a hypothetical equitable action for breach of confidence:

1. the information must be capable of being specifically identifiable as information which is secret rather than generally available;

2. the subject matter of the obligation of confidence must not be trivial or useless or generally known;

3. the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way;

4. it must be established that disclosure of the information would constitute an unauthorised disclosure; and

5. it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment.

202. In Hopson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 379, the Tribunal observed:

70. There is an apparent tension between cl 1 (g) and s 113 of the GIPA Act. Section 113 provides:

113 Protection in respect of actions for defamation or breach of confidence

(1)   If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made—

(a)   no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency by reason of the making of the decision or the disclosure of information, and

(b)   no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the disclosure of information lies against the author of a record containing the information or any other person by reason of the author or other person having supplied the record to an agency.

(2)   Neither the giving of access to information pursuant to a decision under this Act nor the making of such a decision constitutes, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of a record containing the information or its contents by the person to whom the information is disclosed.

71. On the other hand the GIPA Act contemplates (by the fact that cl (1)(g) sits outside of Sch (1), that there will be circumstances whereby irrespective of the fact that the release of information could found an action for breach of confidence etc., that information will be invariably released. If it is released after a proper consideration of the application, the agency is quarantined from any legal repercussion arising by the operation of section 113.

203. The respondent argues that cl 8.11 of item 1 and cl 17 of item 3 are specific confidentiality provisions and that all of the information disputed based on cl 1(g) are subject to confidentiality. Therefore, disclosure would result in a breach of confidence.

204. I note that in Male, SM Stark stated:

272. Having read the information contained in the Documents Withheld, … I am of the view that despite Mr McKeon’s evidence, a reasonable person would assume that tender responses were documents that were provided to the Council “in confidence”. I am of the view that tenderers,… have a right to expect that their information will be kept confidential unless there is an overriding public interest in disclosure.

205. SM Stark also referred to the decision in Meriton at [112], where the Tribunal found that where information was provided in reliance on representations that it would be treated as confidential, release of the information could reasonably found an action for breach of an “obligation of confidence”. SM Stark found that the respondent’s expectation that disclosure of the information could found an action against it for breach of confidence was reasonably held, and is not irrational, absurd or ridiculous in line with the reasoning in Cockroft and Solomon. However, it was not possible to know whether an action for breach of confidence would be successful.

205. I note that the applicant relies on the Tribunal’s decision in Guthrie and asserts that some of the documents that are subject to a claim of confidentiality has previously been disclosed to Mr Guthrie. Therefore, in the “interests of transparency”, the other documents should also be disclosed. In Guthrie, the Tribunal stated:

4. There was disputation between the parties for some time over the application. Access was ultimately provided to information concerning payments before July 2018. It was determined that information about payments between July and December 2018 were not held by the agency. Access was refused to information about payments from January 2019 onwards on the grounds of overriding public interest against disclosure of the information.

5. The applicant narrowed his access request by letter dated 8 February 2019. The applicant stated “What I require is primary data, specifically the clauses in the contract which relate to your point 4 ‘the lease agreement becomes active…’ and point 5 ‘AU are contractually obligated---’. Having received that, I will immediately advise NCAT that the matter is settled, and to cancel the scheduled 15 April Hearing.”

6. References to point 4 and point 5 refer to bullet points in a letter from Lane Cove Council to Mr Guthrie dated 6 February 2019 in which the Council said at bullet point 4 “The lease agreement becomes active after a Development Consent is obtained and the lease is registered.” Bullet point 5 says “Australian Unity are contractually obligated to obtain a Development Consent.”

7. On 6 March 2019 the Council’s solicitors Sparke Helmore wrote to Mr Guthrie in response to his letter of 8 February quoting the terms of the clause dealing with the commencing date of the lease and the clause relating to the development consent. Other related provisions in the contract which were needed to understand the particular clauses quoted were also set out.

8. Council submits that it has fully responded to the request as narrowed by Mr Guthrie in his letter of 8 February. It has provided the Tribunal with an unredacted version of the Agreement for Lease and unexecuted Lease document. Having examined the document I am satisfied there has been a full response to the application as narrowed. (Emphasis added)

207. While the applicant asserts that as the respondent previously released the disputed lease etc. to Mr Guthrie and it is effectively estopped from asserting confidentiality in these proceedings, I consider that argument to be misconceived.

208. As paragraph 7 of the decision in Guthrie indicates, the respondent did not release the lease documents etc to Mr Guthrie, but rather its solicitors advised him of relevant clauses from the disputed information in order to satisfy his reduced GIPA request. The Tribunal made no determination regarding confidentiality and no estoppel arises from that decision.

209. In any event, a perusal of the disputed information indicates that they contain confidentiality clauses and, based on the decisions in Tallawoladah Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department, Hopson and Male, I am satisfied that cl 1(g) applies and that this consideration should be given significant weight.

Clause 3(a) – Items 2, 8 and 13

210. I am satisfied that the disputed information contains personal information and that it is appropriate for such information to be redacted, as and where necessary. While this consideration should be given strong weight, this is not the only consideration against disclosure relied upon in respect of these items.

Clause 4(b) – Items 3, 7, 8, 9, 10, 11, 12 and 13

211. While the applicant argues to the effect that the consideration of commercial-in-confidence does not apply where public land is involved, she has not referred to any legal authorities that support that argument.

212. Based upon my perusal of the disputed information, I am satisfied that disclosure could reasonably be expected to reveal commercial-in-confidence provisions of a government contract and that this consideration should be given strong weight.

Clause 4(d) – Items 2 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 13, 15, 16 and 17

213. For cl 4(d) to be stablished, the Tribunal must be satisfied that disclosure of the disputed information could reasonably be expected to prejudice any person’s legitimate business, commercial, professional or financial interests.

214. The applicant argued to the effect that the reviewable decision did not state how the disclosure of the disputed information would prejudice any person’s legitimate business, commercial, professional or financial interests and/or how those interests would be prejudiced, and that any such prejudice could be overcome by redaction.

215. However, after considering the disputed information, I am satisfied that disclosure of it would reasonably be expected to prejudice the legitimate business, commercial, professional or financial interests of LTV and Pathways. Accordingly, I am satisfied that cl 4(d) has been established and that this consideration should be given strong weight.

Balancing the Public Interest

216. In considering whether to disclose the information in items 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16 and 17 of the schedule of documents, I am required to apply the public interest test under s 13 of the GIPA Act. I have done so in accordance with the principles set out in Flack.

217. Having done so, I am satisfied that there is an overriding public interest against disclosure of the disputed information contained in items 2 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 13, 15, 16 and 17 of the schedule of documents.

Clause 5 of Sch 1 – Legal professional privilege - Item 14

218. Cl 5(1) of Sch 1of the GIPA Act provides that 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.

219. In this matter, I am satisfied that the disputed information is properly protected by legal professional privilege, as it comprises an email and confidential legal advice to the respondent in relation to 266 Longueville Road.

220. I am also satisfied that the respondent has not waived its privilege claim and that its decision to not waive privilege is not a reviewable decision for the purposes of part 5 of the GIPA Act.

221. It follows that I am satisfied that there is a conclusive presumption that there is an overriding public interest against disclosure of item 14 of the schedule of documents.

Conclusion

222. For the reasons set out above, I am satisfied that the correct and preferable decision is to affirm the respondent’s decision.

Order

223. 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: 04 August 2023