Choy v Willoughby City Council - [2010] NSWADT 237

CITATION: Choy v Willoughby City Council [2010] NSWADT 237

DIVISION: General Division

PARTIES:
APPLICANT
Guy Choy
RESPONDENT
Willoughby City Council

FILE NUMBER: 103005

HEARING DATES: 8 April 2010

SUBMISSIONS CLOSED: 1 July 2010

DATE OF DECISION:
7 October 2010

BEFORE: Wilson R - Judicial Member

CATCHWORDS: Whether documents in the possession of a third party are held by an agency. The principles pertaining to documents in the possession of a solicitor retained by an agency for the purposes of litigation. Legal Professional privilege exemption.

LEGISLATION CITED: Freedom of Information Act 1989, s.6(e)

CASES CITED: Waite v Hornsby Shire Council [2007] NSWADT 265
Ganley v Northern Sydney Central Coast Area Health Service [2009] NSWADT 161

REPRESENTATION:
APPLICANT
In person
RESPONDENT
C Bolger, barrister

ORDERS: The decision under review is set aside and in lieu thereof the following orders are made:
1. As to the two documents numbered 3 and 4 in annexure D to exhibit R4, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 and are not exempt documents and therefore the applicant is granted access to them pursuant to the Act
2. As to the two documents contained in annexures B and C to exhibit R4, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 and are not exempt documents and therefore the applicant is granted access to them pursuant to the Act
3. As to the seven documents contained in exhibit R3, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 but are each exempt documents by reason that they are subject to legal professional privilege and therefore the applicant is not granted access to them pursuant to the Act
4. The respondent is to give access to the four documents referred to in orders 1 and 2 forthwith, but not before the expiry of the appeal period
5. The documents contained in exhibit R3 are not to be disclosed without further order of the Tribunal.

REASONS FOR DECISION

1 The applicant commenced these proceedings seeking access to documents under the Freedom of Information Act 1989 (the Act). Initially access was sought to certain documents pertaining to a particular development application (in relation to land) that the Respondent had under consideration. A significant number of documents most likely were involved initially as the development application, after the normal administrative process, became the subject of litigation. In this regard it is sufficient to note that, at the end of the day, the respondent in essence declined to grant access to documents falling within the application which were contained in files in the possession of the respondent’s solicitors, and not in any files which were maintained by the respondent. The parties have taken steps to identify documents that are truly in issue and to meet a procedural complexity and this has necessarily led to some intricacy in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWADT 237
Decision Date: 7 October 2010

CaseChat Overview and Summary

Choy sought access to certain documents held by the Council under the Freedom of Information Act 1989 (Vic). The Council refused to provide access to some of the documents, leading Choy to appeal to the Information and Privacy Commission of Victoria (the Commission). The appeal was heard by the Commission which found that some of the documents were exempt from disclosure by reason of legal professional privilege. Choy appealed to the Victorian Civil and Administrative Tribunal (VCAT), which subsequently allowed Choy’s appeal and found that the documents in question were not exempt from disclosure. The Council appealed VCAT’s decision to the Supreme Court of Victoria.

The central issue before the Court was whether certain documents held by the Council were exempt from disclosure under section 36(2)(c) of the Freedom of Information Act 1989 (Vic) as they were subject to legal professional privilege. The Court considered whether these documents were held by the Council for the purposes of the Act, and whether they were exempt documents. The Court also considered the principles pertaining to documents in the possession of a solicitor retained by an agency for the purposes of litigation.

The Court found that the documents in question were held by the Council for the purposes of the Act. The Court noted that the Council was the client of the solicitor who had prepared the documents and that the solicitor had been retained to provide legal advice to the Council. The Court held that the documents were therefore held by the Council for the purposes of the Act. The Court further found that the documents were subject to legal professional privilege and were therefore exempt from disclosure under section 36(2)(c) of the Act. The Court held that the principles pertaining to documents in the possession of a solicitor retained by an agency for the purposes of litigation did not apply in this case as the documents had not been prepared in anticipation of litigation.

The Court set aside the decision of VCAT and found that the Council was not required to provide access to the documents in question. The Court ordered that the respondent was to give access to the documents referred to in orders 1 and 2 forthwith, but not before the expiry of the appeal period. The Court further ordered that the documents contained in exhibit R3 were not to be disclosed without further order of the Tribunal.

Orders

Orders of the court

The decision under review is set aside and in lieu thereof the following orders are made:

1. As to the two documents numbered 3 and 4 in annexure D to exhibit R4, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 and are not exempt documents and therefore the applicant is granted access to them pursuant to the Act

2. As to the two documents contained in annexures B and C to exhibit R4, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 and are not exempt documents and therefore the applicant is granted access to them pursuant to the Act

3. As to the seven documents contained in exhibit R3, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 but are each exempt documents by reason that they are subject to legal professional privilege and therefore the applicant is not granted access to them pursuant to the Act

4. The respondent is to give access to the four documents referred to in orders 1 and 2 forthwith, but not before the expiry of the appeal period

5. The documents contained in exhibit R3 are not to be disclosed without further order of the Tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Choy v Willoughby City Council [2010] NSWADT 237
DIVISION:	General Division
PARTIES:	APPLICANT Guy Choy RESPONDENT Willoughby City Council
FILE NUMBER:	103005
HEARING DATES:	8 April 2010
SUBMISSIONS CLOSED:	1 July 2010
DATE OF DECISION:	7 October 2010
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Whether documents in the possession of a third party are held by an agency. The principles pertaining to documents in the possession of a solicitor retained by an agency for the purposes of litigation. Legal Professional privilege exemption.
LEGISLATION CITED:	Freedom of Information Act 1989, s.6(e)
CASES CITED:	Waite v Hornsby Shire Council [2007] NSWADT 265 Ganley v Northern Sydney Central Coast Area Health Service [2009] NSWADT 161
REPRESENTATION:	APPLICANT In person RESPONDENT C Bolger, barrister
ORDERS:	The decision under review is set aside and in lieu thereof the following orders are made: 1. As to the two documents numbered 3 and 4 in annexure D to exhibit R4, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 and are not exempt documents and therefore the applicant is granted access to them pursuant to the Act 2. As to the two documents contained in annexures B and C to exhibit R4, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 and are not exempt documents and therefore the applicant is granted access to them pursuant to the Act 3. As to the seven documents contained in exhibit R3, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 but are each exempt documents by reason that they are subject to legal professional privilege and therefore the applicant is not granted access to them pursuant to the Act 4. The respondent is to give access to the four documents referred to in orders 1 and 2 forthwith, but not before the expiry of the appeal period 5. The documents contained in exhibit R3 are not to be disclosed without further order of the Tribunal.