Charteris v General Manager, Leichhardt Municipal Council

[2000] NSWADT 81

Set aside by Appeal: Decision re documents 1, 27 & 54 set aside by appeal on 17/5/01 otherwise decision affirmed

CITATION:	Charteris v General Manager, Leichhardt Municipal Council [2000] NSWADT 81
DIVISION:	General Division
PARTIES:	APPLICANT Geoffrey Ivan Charteris RESPONDENT General Manager, Leichhardt Municipal Council
FILE NUMBER:	993259
HEARING DATES:	05/04/00, 05/06/00, 06/06/00
SUBMISSIONS CLOSED:	06/06/2000
DATE OF DECISION:	06/22/2000
BEFORE:	Smith MB - Judicial Member
APPLICATION:	access to documents - Freedom of Information Act - access to documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Beesley v Commissioner of Police [2000] NSWADT 52 Mangoplah Pastoral Co. Pty Ltd v Great Southern Energy (No 2) [2000] NSWADT 4 Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 Daykin v SAS Trustee Corporation [2000] NSWADT 51 Attorney-General (NT) v Maurice (1986) 161 CLR 475 Goldberg v Ng (1995) 185 CLR 83 Mann v Carnell [1999] HCA 66 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 Tunchon v Commissioner of Police [2000] NSWADT 73
REPRESENTATION:	APPLICANT P Singleton, solicitor RESPONDENT C Ronalds, barrister
ORDERS:	1. The decision under review is set aside in so far as it concerns documents numbered 18, 23, 32, 52, 59, 61, 62, 63, and 70, and in relation to those documents it is decided that the applicant should be given access to the whole of documents 18, 32, 59, 61, 62 and 63 and to such parts of documents 23, 52, 70 as remain after deletions are made in accordance with paragraphs 23 and 24 of the reasons for this decision.; 2. The decision under review is otherwise affirmed.; 3. Liberty to either party to apply for clarification of the above orders.; 4. Direct that any party seeking an order for costs should apply within 21 days of this decision in writing to the Tribunal with notice to the other party and supported by any submissions and evidence in writing, and that the other party should file and serve its submission and evidence in response 21 days thereafter. Subject to any application to the contrary, the question of costs is then to be decided on the papers and without further hearing.

1 This application under the Freedom of Information Act 1989 (NSW) derives from a broadly worded request made by the applicant on 10 May 1999. It is unnecessary to describe the subsequent interactions of the parties which led the applicant to this Tribunal. His application was filed before the decision taken on behalf of the Council had been internally reviewed. However, an internal review decision was made on 28 January 2000. On the application of the applicant and pursuant to s 56(4) of the FOI Act, I have decided to deal with the review application on the basis that the internal review decision is the decision under review. I reached this decision at the start of the hearing, which then proceeded on that basis. The hearing was adjourned from 5 April to 6 June 2000, to enable the respondent to call its witness, Ms Lyons.

2 The applicant’s request was answered by his being given access to numerous files and other documents concerning his dealings with the Council in the circumstances which I shall outline below. The decision under review identified 72 further documents which were withheld on a claim that they were exempt documents under cl 10 of Sch 1 to the FOI Act. At the hearing before me claims for exemption for some of them were also made under cl 9. The justification for making and relying upon these claims became the focus of the hearing. The documents are identified in Schedules which are exhibits and need not be set out in these reasons. In the course of the hearing the claims for exemption in relation to documents 18 and 32 were withdrawn. The other 70 documents remain in contention.

3 At the resumed hearing, the applicant’s counsel sought orders that the Council “produce” other documents in accordance with a letter from the applicant dated 17 February 2000. This referred to his inspection of documents to which access was given, and alleged that there were “missing correspondence” and files which had not been produced. A response from the Council dated 28 February 2000 answers these complaints by saying that the “missing documents” could not be found or are not covered by the present request for access. It purports to be a complete response, and its author, Ms Lyons, was not cross-examined on it. No submissions were put that I should not accept what she said in her letter, and I do so. I consider that I have jurisdiction to review a refusal to give access to documents on the ground that they cannot be located (see Beesley v Commissioner of Police [2000] NSWADT 52), but in view of the position taken by the applicant’s counsel I do not propose to examine this correspondence any further. I refuse the orders sought by the applicant concerning the alleged “non-production”. To the extent that they might have included mandatory orders to enforce execution of decisions to grant access which have already been made, I consider that I have no such power. Counsel put no submissions to me to persuade me otherwise.

4 The applicant’s counsel also indicated that his client sought a costs order, presumably under s 88 of the Administrative Decisions Tribunal Act 1997 (NSW), and he pursued cross-examination of Ms Lyons with this object. With hindsight, I think I should have cut it short at an earlier stage. I declined to hear submissions on this topic, and indicated that these should await my substantive decision on the appeal. I have made the above directions allowing either party to apply for costs. In doing this, I should not be seen as encouraging an application, and I refer the parties to my decision in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy (No 2) [2000] NSWADT 4 and to the President’s decision in Raethel v Director-General, Department of Education and Training [2000] NSWADT 56.

The background to the documents

5 In 1991 the applicant and his wife purchased a house at 5 Punch St, Balmain. This street descends steeply to Sydney Harbour, and the applicant’s house is on the Harbour foreshore. Although maps show Punch St running along the boundary of the property, it would seem that this part of the road has never been constructed and it is doubtful whether the applicant’s property has ever enjoyed vehicular access from Punch St. The evidence before me gives but a glimpse of the convoluted town planning and legal debate which has arisen from this apparently simple scenario.

6 Soon after buying the property the applicant commenced discussions with the Council with the object of constructing a driveway. Eventually, these gave rise to a formal request in December 1996 for the Council’s consent to the submission of a development application for the construction of an access driveway to the residence. The Council’s decision-making on this request included the obtaining of legal advice on the situation from its solicitor, Mr Taylor. Documents 64-69 comprise correspondence between the Council and Mr Taylor between January and April 1997 on the giving of this advice and the drafting of a letter of response to the applicant (GROUP A DOCUMENTS). The response which emerged was a letter dated 6 May 1997 which informed the applicant that “Council considers that an access driveway is a prohibited development”, but said: “if you still wish to lodge a formal development application, the Council is prepared to grant owner’s consent”. The letter enclosed a copy of Mr Taylor’s letter of advice to the Council dated 17 February 1997.

7 This prompted a number of phone conversations between the applicant and Council officers and further correspondence, in which on 18 August 1997 the applicant sought “a rezoning of the land”. Arising out of these communications were a series of internal memos between Council officers in which they discussed the zoning of the land and the applicant’s problem. These are documents 63, 62, 61 and 59 (GROUP B), which came into existence between May and October 1997. The officers referred to Mr Taylor’s advice. One officer also referred to, and placed on the applicant’s file, a legal advice dated September 1997 from different solicitors, Pike Pike & Fenwick, which was seen to be relevant, although it concerned a parking problem at Harold Park raceway (document 60, GROUP C).

8 After further correspondence, the applicant on 4 December 1997 lodged two formal applications for development consent. One sought consent for the construction of a driveway over the un-made section of Punch St (“the driveway DA”), and the other sought consent to subdivide the block into two lots and to build a new dwelling on the lower, waterside lot (“the subdivision and building DA”). In support of his applications, the applicant on 12 February 1998 forwarded a copy of his own legal advice from a specialist barrister, who advised that the proposed access drive was permissible under existing planning laws with the consent of the Council and that re-zoning was not necessary.

9 This caused officers of the Council to seek further legal advice on the situation from Mr Taylor, who had moved to “Phillips Fox Lawyers”. The correspondence between these solicitors and Council on the giving of Mr Taylor’s second advice comprises documents 54-58 and 72 (GROUP D) and occurred between 20 February 1998 and 11 March 1998. The advice was given on 24 February 1998.

10 On the same day the matter came before the Council at a meeting in open session which the applicant attended. The evidence leaves me uncertain what documentary material was placed before the meeting, but it appears to have included Mr Taylor’s second advice and a staff report dated 13 February 1998. The former has never been released, but the latter was released to the applicant after the meeting. The Council resolved: not to support the applicant’s outstanding rezoning request; to have this section of Punch St closed; and to refuse to support the construction of a vehicular access way over it. It would seem that the elected counsellors have never been asked to reconsider these resolutions, and that the resolutions have provided the policy which Council staff have subsequently applied in their own decision-making.

11 The outcome of the meeting spurred the applicant into further correspondence, including with the Mayor. On 13 March 1998 he commenced two proceedings in the Land and Environment Court of NSW which challenged the deemed refusal of the subdivision and building DA. The applications were returnable for directions on 27 March 1998, and were presumably served on the respondent before that date.

12 Meanwhile, council officers addressed the applicant’s still undecided development applications. On 16 March they sought advice from Pike Pike & Fenwick on the legal matters previously addressed by Mr Taylor in his two advisings. Documents 42, 40, 53, 71, 39, and 27 (GROUP E) are the communications concerning this request. His advice was given on 17 March 1998, and was referred to in an internal report dated 26 March 1998 (GROUP EE). Decisions were then made on 26 March 1998 to refuse the roadway DA and on 30 April 1998 to refuse the subdivision and building DA.

13 The correspondence seeking legal advice from Pike Pike & Fenwick overlapped with further correspondence in which the Council instructed the same solicitors to act for the Council in the pending court proceedings (see document 43). It is not necessary to detail the course of the litigation. The evidence before me contains all the normal and expected communications between solicitor and client in such proceedings. These (with the exceptions to which I shall come) are all the remaining documents in contention (GROUP F).

14 The first significant event in the litigation was a judgment on questions of law given by Pearlman J on 28 July 1998. As I understand it, she ruled that the applicant could construct (but not necessarily use) a driveway over the unformed road without the council’s development consent, but that consent to constructions was required from the Council under s 138 of the Road Act 1993. The litigation continued after these rulings, and was brought to an end by orders on 13 January 1999 which dismissed both appeals and refused both aspects of the subdivision and building DA. This group (i.e. Group F) of documents concludes with the solicitors’ reports on the litigation outcome and their itemised statement of costs dated 26 February 1999.

15 Documents nos 23 and 52 (GROUP G) are described by the respondent’s counsel in the schedule accompanying her written submission as “2 page memo from Property Officer on closure of part of Punch Street with proposals for consideration” dated 23 September 1998. This has no apparent relationship with the litigation, but responds to the question of road closure which had been raised in Council’s resolutions of 24 February 1998. The memo makes reference to the Pike Pike & Fenwick advice of 17 March 1998 which is in Group E.

16 Although the litigation addressed aspects of the legal status of the unformed roadway, the applicant did not appeal from nor otherwise challenge the Council’s refusal of his roadway DA. He has not revealed any legal advice upon which he decided not to do this. Instead, on 28 May 1998, while the litigation was still on foot, he wrote to the Council requesting consent under s 138 of the Roads Act. Further correspondence ensued on this. Advice was given on the topic by Pike Pike & Fenwick on 29 September 1998, and on 15 October 1998 they provided a draft letter to be sent to the applicant raising a query concerning existing uses (see documents 22, 19: GROUP H). The Council sent such a query to the applicant on 2 December 1998. This produced a letter from the applicant on 7 December 1998 which responds to the Council query by saying “we… will advise you further”. No further letter has emerged from the applicant on this, and it would seem that his Roads Act application has not been formally determined but has lapsed.

17 Although much other correspondence has passed between the applicant and the Council since the completion of the litigation, no further documents have been claimed to be exempt. I therefore need not narrate the, increasingly sour, course of the applicant’s communications with the Council, including in relation to his FOI request. They have culminated in the present proceedings before me. Unfortunately, nothing in the evidence nor in the manner in which the proceedings were conducted by the parties leads me to see any prospect that their present mutual distrust will be overcome. I do, however, note that on 9 August 1999 the Council consented to a development application for additions and alterations to the applicant’s present home on 5 Punch St.

Conclusions on exemptions

18 The above groupings of documents are mine, but they enable me to give short reasons for deciding the respondent’s individual claims for exemptions in relation to each of the documents in contention. I emphasise that, although I describe my reasons by reference to groups of documents, I have examined each document separately, and my reasoning in relation to each group is separately applicable to each document within the group.

19 In relation to Groups A, C, D, E, and H, I have concluded that the ground of exemption provided in cl 10 has been made out on the basis of legal privilege concerning the obtaining of legal advice. I consider that a perusal of the contents of each of the documents in the context narrated above shows clearly that it was brought into existence and communicated either to the Council from its solicitor or to the solicitor from the Council in circumstances where there was an implied confidentiality to the communication. This implication arises, in my opinion, from the normal relationship of solicitor and client in the circumstances of the present express requests to give legal advice. Counsel for the applicant cited no authority against drawing such an implication. I am satisfied that the creation of each of the documents and the communication of their contents came about with the sole purpose of the solicitors providing legal advice to the Council. This includes some apparently trivial communications. I consider that the doctrines of privilege are clearly satisfied in their most demanding form whether under common law or Evidence Act tests, and that there is no need in the present case for me to enter into a further discussion of the points I considered in Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [27] and Daykin v SAS Trustee Corporation [2000] NSWADT 51 at [35]-[36].

20 In relation to Group A documents, the applicant’s counsel submitted that there had been an implied waiver of the privilege by reason of the disclosure to the applicant in May 1997 of Mr Taylor’s first advice which was the occasion for the creation of all of these documents. He also submitted that the circumstance gave rise to an implied waiver in relation to Mr Taylor’s subsequent second advice and the documents surrounding its communication (Group D). Counsel referred me to Attorney-General (NT) v Maurice (1986) 161 CLR 475, Goldberg v Ng (1995) 185 CLR 83, and Mann v Carnell [1999] HCA 66 without taking me to any particular passages in those cases. I reject these submissions. I find nothing “inconsistent” with maintaining the privilege for these documents arising from the release of Mr Taylor’s first advice (c.f. Mann’s Case (supra) at [29]). There has been no partial revealing of the contents of any of the documents which makes it unfair not to reveal their whole contents, and the applicant does not need access to them to understand the document which was released to him in May 1997.

21 Turning to the Group F documents, I consider that all these numerous documents plainly came into existence and were communicated from Council to solicitor or from solicitor to Council in implied circumstances of confidentiality and for the sole purpose of enabling the solicitor to represent the Council in the then existing litigation in the Land and Environment Court. I consider that each of them clearly satisfies the most demanding test of privilege whether under common law or by reference to the Evidence Act. In my opinion the claims for exemption under cl 10 are justified in relation to each document. This conclusion is not, in my opinion, affected by the routine nature of some of the communications.

22 Groups B, EE and G are internal discussion documents prepared by Council staff members for which the respondent claims exemptions under both cll 9 and 10. In relation to cl 10, it is submitted that each memorandum contains passages whose disclosure would disclose the contents of the solicitors’ advising which I have above held are covered by privilege. I have closely examined these documents and compared them with the advising. In my opinion, no such disclosure would occur in relation to the documents in Group B. Although they mention “the legal advice” in a manner which gives some indication of its contents, I would understand these references as being to Mr Taylor’s first advice which has already been disclosed to the applicant. Privilege in relation to that advice and any references to its contents has, therefore, been waived. I reject the submission that document 59 also contains exempt matter by reason of a passage in which reference is made to the Pike Pike & Fenwick Harold Park advice which is document 60 (Group C). I am not persuaded that revealing this passage would involve a disclosure of legal opinions or advice which were communicated in confidence.

23 In relation to document 70 (Group EE), I consider that a disclosure of confidential legal advice would occur in relation only to some of the material appearing on its second page. This is the contents of part of the second paragraph and the whole of the third, fourth and fifth paragraphs (not including the heading “Conclusion”) on that page. I consider that on page 2 the first paragraph, the first sentence of the second paragraph and the words “The legal advice indicates that” are not exempt matter under cl 10. In relation to the first page of this document, I am not satisfied that its narration of background events adopts or discloses matter communicated in confidence by a solicitor. It reads to me only as the author’s summary of non-privileged material contained on Council files. I consider that, subject to the claim for exemption under cl 9 which I have yet to discuss, the non-privileged matter in document 70 should be released to the applicant by way of a copy containing deletions pursuant to s 25(4) of the FOI Act.

24 In relation to the document which in duplicate comprises documents 23 and 52 (Group G), I consider that only the italicised quoted passage from the legal advice would disclose a confidential communication from a solicitor. In my opinion, the remainder of this memorandum refers to the legal advice without disclosing its terms and should not be treated as containing “exempt matter” under cl 10. I consider that, subject to the claim for exemption under cl 9 which I have yet to discuss, the remaining non-privileged matter in this document should be released to the applicant by way of a copy containing a deletion pursuant to s 25(4) of the FOI Act.

25 In relation to all the documents or part documents which I have above found privileged, there remains the question of whether reliance on the cl 10 exemption would produce the correct and preferable decision under ss 24 and 25 of the FOI Act. This requires me to consider the discretion to “override” the legal professional privilege exemption in the manner discussed in Mangoplah (supra) at [90-95] and Daykin (supra) at [57-59]. Neither counsel sought to persuade me to depart from my discussion of the law in these cases.

26 Counsel for the applicant submitted, as the principal consideration which justified overriding the privilege attaching to the present communications between Council and its solicitors, that in the circumstances which I have sketched above the applicant had an overriding interest to know the contents of the documents as a ratepayer and resident who was faced by decision-making which had arrived at a surprising and unexplained frustration of his desire for vehicular access to his home. He suggested also that the documentation concerned issues which were now “stale”, and that their revelation would “clear the air” and bring to an end his suspicions of impropriety which have been a recurring theme in his correspondence with the Council.

27 The applicant’s counsel submitted that the override discretion under the FOI Act should be exercised consistently with the duty on the Council to disclose the documents under s 12(6) of the Local Government Act 1993 unless “allowing inspection of the document would, on balance, be contrary to the public interest.” In this respect, s 12A(5) indicates that the Local Government Act access provisions are intended to complement the operation of the FOI Act. I accept these submissions, but do not consider that in the present case s 12(6) raises additional considerations nor requires their weighing in a different manner than that indicated in Mangoplah and Daykin. The starting point for the balance required under s 12(6), as for the discretion to override an exemption in s 25(1) of the FOI Act, is an undoubted public interest that the Council should be entitled to seek and obtain legal advice in the conduct of its affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication (c.f. Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 at [35]).

28 I am not persuaded that this public interest should not prevail in the present circumstances. That is, I consider that, weighing up all considerations, the exemption under cl 10 provides an appropriate justification for refusing access to the present privileged documents. Significant to my reasoning is the actual contents of the documents. I doubt whether their disclosure to the applicant would, in fact, provide him with new explanations or insights into the Council’s decision-making. On the material before me, the policy and legal content of the decisions affecting him has appeared, if at all, in what happened at the open meeting on 24 February 1998 and in the subsequent correspondence and litigation in which the applicant has participated. I am not persuaded that giving access to the applicant to any of the documents would in fact produce an “accountability” which would assist either the applicant or the proper administration of the Council in relation to the applicant’s concerns or generally. I am not persuaded that disclosure would close or bring any improvement to his relationship with the Council. In the absence of any evidence from the applicant apart from his letters to the Council, I am left in ignorance as to his true state of mind and his intentions as to future applications to the Council or future claims against the Council. In this uncertainty as to any private or public benefits from overriding the exemption, I do not need to make findings quantifying a harm to the Council in order to accept that the privilege provides its own justification for refusing access. I have decided not to override the privilege, and would affirm the decision refusing access to the documents or parts of documents coming under cl 10.

29 The remaining issue is whether the balance of the material, i.e. documents in Group B and the non-privileged material in Groups EE and G satisfy the description of exempt documents under cl 9 of Sch 1 to the FOI Act. This exemption applies to a document defined in cl 9(1)(a) and (2), loosely referred to as an “internal working document”, but only where I am satisfied that its disclosure “would on balance be contrary to the public interest” in accordance with cl 9(1)(b).

30 In the present case, I am prepared to assume that all the documents in question satisfy cl 9(1)(a) read with cl 9(2). However, I am not persuaded by the evidence or submissions led by the Council that the public interest test in cl 9(1)(b) falls in favour of non-disclosure. I have recently discussed my understanding of this test in Tunchon v Commissioner for Police [2000] NSWADT 73 at [14-19], and follow what I said there.

31 The present deliberative documents address decision-making on applications by the applicant which have been determined or have not been pursued. The legal issues canvassed in the documents have been addressed, at least in greater part, in litigation which has concluded. Prima facie, I can find nothing in the content of the documents nor in the surrounding circumstances sketched above which leads me to think otherwise than that disclosure at the present time under the FOI Act would be entirely in accordance with the public interest and with the objectives of the FOI Act.

32 The consideration to the contrary which was urged upon me by counsel for the respondent referred me to evidence showing that the applicant has made allegations of “bad faith” and “dishonest and misleading” conduct and has made vague threats of damages claims. He has also alleged the making of a defamatory remark by an agent of the Council in the course of the past litigation. Although it was submitted, and I find, that no support for these allegations is found in the present documents, counsel submitted that giving access to the documents or any one of them might contribute to his pursuing these allegations further. My short response to this submission is that I am not persuaded to accept its prediction. It seems to have been common ground that the applicant is a practising barrister, and that, where he has in fact embarked on litigation, he has taken legal advice from objective sources. I am unpersuaded that there is a risk that he will embarked on unmeritorious claims against the Council or its officers. On the evidence before me, in particular the contents of the non-privileged documents in question, I find no real prospect that their disclosure could unreasonably, or at all, prejudice the Council or any of its officers in relation to any claim of impropriety which might in future be levelled against them by the applicant.

33 In relation to the legal issues canvassed in the documents, counsel submitted that it was possible that the applicant, or future owners of 5 Punch St, might in the future again seek to obtain the Council’s approval for a driveway, and that the Council would be prejudiced in its future responses by the disclosure of any of the documents. I accept that the question of access to this property may not go away, however, I consider that this favours disclosure rather than non-disclosure of the present deliberative documents. Assuming that something in the documents may have continuing relevance, I consider that its disclosure may assist, rather than impede, Council’s future deliberations and the ability of the owners of 5 Punch St to participate in an informed way. I find no discernible harm to the Council or any of its staff from the applicant now having access to them.

34 I therefore reject the claims that the remaining documents or part documents are exempt documents within cl 9 of Sch 1.

35 For all the above reasons, I consider that the decision under review should be affirmed except in relation to documents number 18, 23, 32, 52, 59, 61, 62, 63, and 70. I consider that the applicant should be given access to the whole of 18, 32, 59, 61 and 63 and to such parts of documents 23, 52, 70 as are not to be deleted and withheld in accordance with my above reasons.