Choy v Willoughby City Council

[2012] NSWADT 277

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Choy v Willoughby City Council [2012] NSWADT 277
Hearing dates:	On the papers
Decision date:	21 December 2012
Jurisdiction:	General Division
Before:	Naida Isenberg, Judicial member
Decision:	The decision under review is affirmed
Catchwords:	GIPA application - previous FOI application - different tests - whether further documents exist - legal professional privilege
Legislation Cited:	Government Information (Public Access) Act 2009 Freedom of Information Act 1989 Evidence Act 1995
Cases Cited:	Choy v Willoughby City Council [2010] NSWADT 237 Grant v Downs (1976) 135 CLR 574 Cianfrano v Director-General, Premiers Department NSW &Anor [2004] NSWADT 255 McCabe v Workers Compensation Commission [2012] NSWADT 30
Category:	Principal judgment
Parties:	Guy Choy (Applicant) Willoughby City Council (Respondent)
Representation:	G Choy (Applicant in person) Willoughby City Council (Respondent)
File Number(s):	123118

REASONS FOR DECISION

Background

1. On 28 July 2011, Guy Choy ('the applicant') applied under the Government Information (Public Access) Act 2009('GIPA Act') to the respondent for access to information enumerated in several detailed points ('the access application'), which in general terms, related to a development application. He was provided with some information; other information was said not to exist; and some other information was said to be the subject of a claim for legal professional privilege and he was refused access to that information.

1. The decision was affirmed on internal review. The applicant seeks review of the decision.

1. The applicant made a similar application under the Freedom of Information Act 1989: see Choy v Willoughby City Council [2010] NSWADT 237 ('the FOI case'), but as he was unsuccessful, and in view of the broader provisions of the GIPA Act, he sought access to the same information again.

1. At a planning meeting conducted by the Tribunal the applicant confirmed that he pressed his original application only insofar as it related to:

· the relevant clause of Council's instrument which verifies the General Manager's claim in his letter, dated 31 May 2011, that clause 38 of the Code of Meeting Practice is not applicable with regards to Council's resolution dated 15 June 2004 to refuse the development (DA 2002/1579) ('application claim 3(i)')

· A copy of the council's solicitor's response to his FOI application as recorded in Council files ('application claim 4(i)')

ISSUES

Can the Tribunal be reasonably satisfied that the respondent has provided the applicant with all information in response to application claim 3(i)?

Is there a proper claim for legal professional privilege in respect of the documents referred to in application claim 4(i)?

LEGISLATIVE SCHEME

1. There is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure': s.5 GIPA Act.

1. On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s 105(1) GIPA Act.

CONSIDERATION

1. The applicant provided several very detailed submissions, all of which I have carefully read. Underlying his application appears to be a concern that in refusing his development application Council had not acted in a manner which was fair to "the community".

Application claim 3(i)

1. The applicant asserted and that the Council's General Manager had altered Council's resolution in relation to the development application on the understanding that he had delegated authority to do so. He referred to the Council's Code of Meeting Practice, in particular clause 38, which he said, specifies that any alterations to a notice of determination can only be carried out at a subsequent Council meeting and that members of the public who had attended the meeting when the resolution was made were to be contacted to enable them to attend the next meeting. He contended that residents had been denied leave to submit further evidence.

1. He said he had been informed by the General Manager that Council had resolved to delegate authority to the General Manager to alter the resolution and that clause 38 of the Code of Meeting Practice was not applicable.

1. In response to this aspect of the access application the respondent provided a copy of the Council Resolution and Delegation of Authority, a copy of which was provided to me.

1. The applicant contended that the information sought had not been provided. The respondent explained that the document it had provided was an extract from the minutes of the Finance, Economic Development and General Purposes Committee - which consisted of all councilors - dated 16 August 2004, when minor changes to the Delegations of Authority were considered and agreed. The Instrument of Delegation, outlining the General Manager's delegations was provided to the applicant.

1. Having regard to the applicant's contention, the first step is for me to consider if there are reasonable grounds to believe that there are additional documents answering this aspect of the application: see McCabe v Workers Compensation Commission [2012] NSWADT 30.

1. However, it was altogether unclear to me what further relevant information the applicant was asserting the Council was likely to have beyond that which it had already provided. As a result, and having regard to the explanation about the document provided by the Respondent, I have come to the view that there are no reasonable grounds to believe that some further documents exist.

1. I should note, especially for the benefit of the applicant, that it is not for the Tribunal in the course of this matter to consider whether the course of its decision-making processes in relation to development applications the Council acted appropriately, or in accordance with its powers or otherwise.

Application claim 4(i)

1. While the Tribunal's task is to balance the public interest considerations before and against disclosure of the information sought, in relation to information properly the subject of a claim for legal professional privilege there is a conclusive presumption that there is an overriding public interest against disclosure: schedule 1 cl. 5(1) of the GIPA Act.

1. The term 'legal professional privilege' is not defined in Schedule 4 of the 'Interpretative provision' of the GIPA Act, but is to be interpreted in accordance with the general law.

1. The historical basis for legal professional privilege is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers and encourages the client to make a full and frank disclosure of the relevant circumstances to the legal adviser: Grant v Downs (1976) 135 CLR 574.

1. The principles governing legal professional privilege were usefully summarised by Young J in AWB Ltd v Cole (No 5) (2006) 155 FCR 30 [at 44]. In applying those principles it is first necessary to decide in relation to each document for which the exemption is claimed, whether the respondent has discharged the onus of establishing that it was brought into existence, for the dominant purpose of giving or obtaining legal advice.

1. Those common law principles are now reflected in Part 3.10, Division 1 (Client Legal Privilege) of the Evidence Act 1995, especially sections 117 and 119, which protects communications between a client and his or her lawyer where such communications are made in confidence and for the dominant purpose of the client being provided with professional legal services.

1. Legal professional privilege will only attach to confidential information made for the dominant purpose of obtaining or giving legal advice or for use in legal proceedings. The fact that the author of a document is a lawyer does not automatically determine that privilege attaches to the document; rather, it must be shown that the document was brought into existence in the course of the performance of the lawyer's professional role.

1. The protection of legal professional privilege is not limited to communications made directly between a lawyer and his or her client for the dominant purpose of obtaining or giving legal advice or for the purposes of litigation. Communications between a client's lawyer and third parties may also attract privilege if it can be shown that a document was prepared for the dominant purpose of actual or contemplated legal proceedings. Legal privilege may also be extended to "copies of documents that are not privileged where the copy was made for the dominant purpose of obtaining legal advice or for use in pending or contemplated litigation": Cianfrano v Director-General, Premiers Department NSW &Anor [2004] NSWADT 255 at 30.

1. In the FOI case the same documents were the subject of the application. As well as claiming legal professional privilege the respondent submitted that it did not have immediate right of access to the documents as they were held by it solicitors. The Tribunal found that the respondent did have an immediate right of access to the documents, and the documents were found to properly the subject of a legal professional privilege claim.

1. There has been no substantive change in the law since the FOI case as may affect the respondent's claim for legal professional privilege. I have examined the documents. The respondent did not file any evidence about how the 7 documents referred to in its schedule of withheld documents came into existence, however, it was clear to me that each was prepared for the dominant purpose of the provision of legal advice in relation to legal proceedings about the development application.

1. I observe that the provisions at schedule 1 cl. 5(2) of the GIPA Act require the agency to consider whether it would be appropriate to waive the privilege before making the decision to refuse access on the basis of this clause. Although the privilege was waived in respect of one of the solicitor's letter - dated 13 July 2009 - the respondent was of the view that it would be inappropriate to waive the privilege in respect of the remaining 7 documents and declined to do so. A decision not to waive privilege is not reviewable by the Tribunal: schedule 1 cl. 5(3) of the GIPA Act.

1. Accordingly, I find the documents under review to be exempt by virtue of Schedule 1 cl. 5(1) of the Act. Therefore there is a conclusive presumption that there is an overriding public interest against disclosure of those documents.

Decision

The decision under review is affirmed.

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Decision last updated: 21 December 2012