FABRAY PTY LTD and CITY OF STIRLING
[2011] WASAT 187
•23 NOVEMBER 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: FABRAY PTY LTD and CITY OF STIRLING [2011] WASAT 187
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
HEARD: 8 NOVEMBER 2011
DELIVERED : 23 NOVEMBER 2011
FILE NO/S: DR 250 of 2011
BETWEEN: FABRAY PTY LTD
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Practice and procedure - Production of documents - Privilege - Legal professional privilege - Third party communications - Valuation report by land valuer and associated emails - Whether valuation report was obtained for the dominant purpose of preparing for, or use in, contemplated proceedings - Whether litigation was reasonably contemplated, apprehended or anticipated by party requesting valuation report - Whether production of documents should be refused in the exercise of discretion - Respondent refused development application by applicant on land reserved for public open space and local government purposes because of reservation and endorsed commencement of negotiations for purchase of land - Applicant commenced proceeding for review of refusal of development application in SAT - Parties used SAT mediation process with SAT's approval to seek to resolve the value of the land for the purchase of the land - Valuation report of the value of the land obtained by respondent in context of mediation process in SAT
Legislation:
Commercial Arbitration Act 1985 (WA)
Freedom of Information Act 1992 (WA)
Planning and Development Act 2005 (WA), s 118(2)(b), s 173, s 174, s 177(1), s 178(1), s 187, s 187(1), s 187(2), s 188(2)(b), s 188(3)(b), s 252(1), Div 2 Pt 11
State Administrative Tribunal Act 2004 (WA), s 34(5)
Town Planning Scheme No. 38 Stirling City Centre Scheme
Result:
Documents privileged from production
Category: B
Representation:
Counsel:
Applicant: Mr PJ McQueen with Ms CN Gleeson
Respondent: Mr PL Wittkuhn
Solicitors:
Applicant: Lavan Legal
Respondent: McLeod & Co
Case(s) referred to in decision(s):
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
Grant v Downs (1976) 135 CLR 674
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332; [2002] VSCA 59
Warner v Women's Hospital [1954] VLR 410
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Fabray Pty Ltd commenced an original proceeding against the City of Stirling for the determination of the value of land that the City elected to purchase rather than having to pay compensation for injurious affection (valuation proceeding). Fabray Pty Ltd had earlier commenced a review proceeding in relation to the refusal by the City of Stirling of a development application on the land (development proceeding). From essentially the outset of the development proceeding, for a period of over five months, the parties, with the consent of the Tribunal, engaged in a mediation process in the development proceeding directed to the value of the land for its acquisition by the City, rather than to the development application. The mediation process in the development proceeding occurred prior to the first indication by Fabray Pty Ltd that it intended to commence the valuation proceeding or any litigation in relation to the value of the land.
In the context of the mediation process in the development proceeding directed to the value of the land, the City of Stirling requested and obtained a valuation report. The mediation in the development proceeding did not succeed in the resolution of the value of the land and Fabray Pty Ltd then commenced the valuation proceeding. In the valuation proceeding, Fabray Pty Ltd sought an order, pursuant to s 34(5) of the State Administrative Tribunal Act 2004 (WA), for the production by the City of the valuation report and associated emails.
Section 34(5) of the State Administrative Tribunal Act 2004 (WA) does not allow the Tribunal to make an order for the production of a document that is subject to legal professional privilege. The City of Stirling argued that the documents were privileged from production on this ground. Alternatively, the City argued that the Tribunal should decline to order production of the documents in the exercise of discretion.
The Tribunal determined that the documents were the subject of legal professional privilege because they were brought into existence for the dominant purpose of preparing for, or use in, litigation in relation to the value of the land that was reasonably contemplated, apprehended or anticipated by the City of Stirling. The officer of the City who requested the valuation report mistakenly, although understandably, considered that the development proceeding involved or at least included the determination of compensation and/or land value, and sought the valuation report with reference to that proceeding. Furthermore, the parties were seeking to resolve land value by means of the Tribunal's mediation process in the development proceeding, thereby avoiding the need for one of them to have to commence a valuation proceeding in the Tribunal for that purpose, and the valuation report was obtained by the City in the context of the mediation process.
The Tribunal, therefore, did not have power to make an order requiring the production of the documents.
However, even if the documents were not subject to legal professional privilege, the Tribunal would have declined to order their production in the excise of discretion under s 34(5) of the State Administrative Act 2004 (WA) as to do so would be contrary to the public interest to facilitate broader dispute resolution and avoid further disputation. In the development proceeding, the parties and the Tribunal sought to achieve what has been termed a 'super resolution' of the broader or underlying issue between the parties, namely the value of the land. To order the production of the documents would discourage parties from engaging in a 'super resolution' where the Tribunal is prepared to direct its facilitative dispute resolution processes to that end and thereby to seek to avoid further or ongoing disputation between parties.
Introduction
This proceeding involves an original application commenced on 22 July 2011 by Fabray Pty Ltd (Fabray), pursuant to s 188(2)(b) of the Planning and Development Act 2005 (WA) (PD Act), against the City of Stirling (City or Council), for the determination of the value of Lots 206 and 9002 Ellen Stirling Boulevard, Innaloo (land). The proceeding is listed for final hearing over three days commencing on 20 December 2011.
On 13 July 2011, Mr PJ McQueen, Fabray's solicitor, made an application to the City under the Freedom of Information Act 1992 (WA) (FoI Act) for access to documents in relation to the land, including 'in relation to external consultants such as valuers and planners' (FoI application). On 16 September 2011, the City determined the FoI application, releasing some documents and claiming an exemption in relation to others. The documents in relation to which the City claimed an exemption on the ground of legal professional privilege included documents 9, 12 and 13 in the schedule to the City's decision. The schedule relevantly states as follows:
| AUTHOR/RECIPIENT | DATE | TYPE | DETAILS | COMMENT | |
| … 9) | Third Party/City of Stirling | 12/04/11 | | Email with attached Report: Lots 206, 9002 Ellen Stirling Blde Innaloo Valuation Report | Exempt -clause 6 & 7 |
| … 12) | Third Party/City of Stirling | 13/04/11 | | Valuation of the City's valuer | Exempt -clause 7 |
| … 13) | Third Party/City of Stirling | 13/04/11 | | Valuation from the City's valuer & correspondence between the City and the City's lawyers | Exempt - clause 7 … |
Fabray seeks an order, pursuant to s 34(5) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), requiring the City to produce documents 9, 12 and 13 in the schedule to its decision under the FoI Act. Section 34(5) of the SAT Act states as follows:
The Tribunal may give a direction requiring a party to produce a document or other material, or provide information, to the Tribunal or another party despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents.
The City contended that the documents sought by Fabray are subject to legal professional privilege and that consequently the Tribunal does not have power to order their production under s 34(5) of the SAT Act. As Batt JA (with whom Charles and Callaway JJA agreed) said in Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332; [2002] VSCA 59 at 337; [11]:
Where a question of legal professional privilege arises, the onus is on the party claiming it to make it out by evidence or argument, even though it is the other party that has applied for relief by way of an order for production for inspection or otherwise: Grant v Downs [(1976) 135 CLR 674 at 689]; Waugh [v British Railways Board [1980] AC 521 at 541G].
Alternatively, the City contended that the Tribunal should decline to order production of the documents in the exercise of discretion under s 34(5) of the SAT Act, because to do so 'would undermine the mediation process in the context of which the [valuation report] was obtained'.
Background
The land is reserved under Town Planning Scheme No. 38 Stirling City Centre Scheme (TPS 38) for public open space and local government purposes. Fabray has owned the land for about 20 years and has had the intention throughout this period to develop the land or have it acquired by the City.
In October 2010, Fabray lodged a development application with the City for approval under TPS 38 for a mixed use commercial/residential development on the land. On 14 December 2010, the Council refused to grant development approval 'on the grounds that the land is zoned Local Authority Reserve - Public Open Space and Local Authority Purposes'. At the same time, the Council resolved to 'ENDORSE the commencement of NEGOTIATIONS between the City and the owner [of the land] … for the purchase of the … land given [the reservation] and current work being undertaken by the Stirling City Centre Alliance suggests that the land will be required for Public Purposes'.
On 12 January 2011, Fabray commenced proceeding DR 7 of 2011 in the Tribunal in which it sought review, pursuant to s 252(1) of the PD Act, of the City's decision to refuse the development application. The Tribunal listed proceeding DR 7 of 2011 for a directions hearing on 21 January 2011.
On 18 January 2011, Mr Ian Bignell, the City's Manager City Planning, telephoned Mr Andrew Roberts, a partner of McLeods, and instructed Mr Roberts to represent the City in proceeding DR 7 of 2011. In reviewing the matter following his telephone conversation with Mr Bignell, it became apparent to Mr Roberts 'that as the City had refused development approval on the ground that the [land] was reserved land, Fabray was entitled to lodge a claim for compensation for injurious affection under the provisions of Div 2 of Pt 11 of the [PD Act]'. Mr Roberts was also aware that, under Div 2 of Pt 11 of the PD Act, 'there was the potential for further proceedings between Fabray and the City if Fabray made a claim for compensation', including arbitration under the Commercial Arbitration Act 1985 (WA) to determine either the amount to be paid by the City to Fabray as compensation for injurious affection of the land or the value of the land if the City elected to purchase it rather than pay compensation, and a proceeding in the Tribunal to determine the value of the land if the City elected to purchase it rather than pay compensation.
On instructions from the City, on 20 January 2011, Mr Roberts emailed Mr McQueen, referring to the directions hearing in proceeding DR 7 of 2011 scheduled for the next day, and stating as follows:
I note Council's resolution on 14 December 2010 to commence negotiations with your client for the purchase of the subject site. I understand there has been some initial contact between Ross Povey of the City and Matt Raison of Generation Projects about the acquisition. In view of this, is your client amenable to mediation to discuss the acquisition of the site?
Mr McQueen replied by email on 20 January 2011 as follows:
Yes, we are instructed to seek mediation.
Clare [Gleeson] and or I will see you at SAT tomorrow.
At the directions hearing in proceeding DR 7 of 2011 on 21 January 2011, the Tribunal referred the matter to mediation to commence at 2:15 pm on 15 February 2011 for a duration of three hours.
On 27 January 2011, pursuant to s 173 and s 174 of the PD Act, Fabray lodged a claim for compensation in the amount of $10 million for injurious affection of the land by reason of its reservations under TPS 38. Under s 177(1) of the PD Act, where land is reserved for a public purpose under a planning scheme, no compensation is payable by the responsible authority for injurious affection to the land alleged to be due to or arising out of the reservation until the land is first sold following the date of the reservation or the responsible authority refuses a development application on the land or grants a development application on the land subject to conditions that are unacceptable to the applicant. Under s 178(1) of the PD Act, a claim for compensation for injurious affection of the land had to be made, relevantly, within six months after the refusal of the development application by the City on 14 December 2010.
A day or two prior to the mediation scheduled for 15 February 2011, Mr Roberts discussed the engagement by the City of a land valuer with officers of the City, including Mr Vaughan Williams, the City's Land and Property Coordinator. During these discussions, Mr Roberts advised the City 'on the need to approach the mediation in a manner which did not prejudice the City's position in any future litigation with Fabray'. Mr Roberts 'anticipated (and made it clear to the officers of the City who were instructing me that I anticipated) such litigation as a possibility if Fabray's claim could not be settled'.
On 15 February 2011, the mediation in proceeding in DR 7 of 2011 took place before Member (now Senior Member) Maurice Spillane. Following the mediation, Mr Spillane adjourned the mediation to 12 pm on 15 April 2011.
Section 187(1) of the PD Act conferred an option on the City to elect to acquire the land instead of paying compensation for injurious affection. Section 187(2) of the PD Act required the City to give a written notice to Fabray, within three months of the claim for injurious affection being made, that is on or before 27 April 2011, as to whether the City elected to acquire the land or not. On 11 March 2011, Mr Williams informed Mr Roberts that there was no requirement to have a valuation undertaken in order for the Council to determine whether to elect to purchase the land under s 187 of the PD Act.
On 18 March 2011, Mr Williams wrote to Mr Keith Wilson of Pember Wilson & Eftos, Land Valuers, referring to and attaching a copy of the development application, and stating as follows:
The City is now required to elect to purchase the property or pay compensation in lieu. The matter is going to Council on 5 April 2011 with a recommendation to elect to purchase the properties.
The Claimants lodged a claim for compensation with the City for $10 m (copy attached) and they had already referred the matter to the State Administrative Tribunal. Mediation was held at SAT on 15 February 2011 and following discussions, the mediation was deferred to 15 April 2011 to allow time for the City to elect to purchase the property plus for both parties to obtain valuation advice.
Would you please now provide the City with a valuation of the whole of the above properties as at the date of the proposed date of election to purchase, being 5 April 2011. Your earliest attention to this would be appreciated.
Please find attached copies of all the necessary correspondence for your information to assist in the valuation of the property pursuant to the claim for compensation. Please provide the valuation report to the City before 14 April 2011. …
At its meeting on 5 April 2011, the Council elected to purchase the land instead of paying compensation pursuant to s 187 of the PD Act.
The mediation scheduled for 15 April 2011 was vacated on the basis that it would be rescheduled for a later date. The mediation continued on 30 June 2011 before Mr Spillane. The parties agree that at the mediation on 30 June 2011, Fabray expressed frustration with the negotiations in relation to the value of the land for its purchase by the City and indicated that it would commence the present proceeding pursuant to s 188(2)(b) of the PD Act for the determination by the Tribunal of the value of the land for its acquisition by the City. Prior to the mediation on 30 June 2011, Fabray had not taken any action or given any indication that it would litigate in relation to the value of the land.
As noted earlier in these reasons, on 22 July 2011, Fabray commenced proceeding DR 250 of 2011 for the determination of the value of the land.
Documents in relation to which privilege is claimed
As noted earlier, the City has claimed privilege in relation to documents 9, 12 and 13 in the schedule to the City's decision in relation to the FoI Act application. Document 9 is an email dated 12 April 2011 from the valuer engaged by the City to Mr Williams attaching an unsigned valuation report in response to Mr Williams' letter dated 18 March 2011.
Document 13 comprises two emails, one of 12 April 2011 and one of 13 April 2011, between Mr Roberts and an officer of City. The email of 12 April 2011 attached the unsigned valuation report.
Document 12 is a chain of four emails culminating in an email from the valuer to an officer of the City dated 13 April 2011. The first two emails in the chain are the emails described as document 13. The third email in the chain was an email from an officer of the City to Mr Roberts dated 13 April 2011 which was copied to the valuer and two of the City's officers.
Are the documents privileged from production?
In Cross on Evidence (8th Australian ed, 2010), Justice JD Heydon provides the following statement of legal professional privilege at [25210]:
In civil and criminal cases, confidential communications passing between a client and a legal advisor need not be given in evidence or otherwise disclosed by the client and, without the client's consent, may not be given in evidence or otherwise disclosed by the legal advisor if made either (1) to enable the client to obtain, or the advisor to give, legal advice, or assistance or (2) with reference to litigation that is actually taking place or was in the contemplation of the client. …
Documents prepared by or communications passing between the legal advisor or client and third parties need not be given in evidence or otherwise disclosed by the client and, without the consent of the client, may not be given in evidence or otherwise disclosed by the legal advisor if they come within (2) above.
The last category of privileged documents referred to in the quotation involves 'third party communications'. In order for a third party communication to be privileged from production, where there is no litigation actually taking place, litigation must be 'reasonably contemplated' (Grant v Downs (1976) 135 CLR 674 at 678 per Barwick CJ), 'reasonably apprehended' (Warner v Women's Hospital [1954] VLR 410 at 420 per Sholl J) or 'reasonably anticipated' (Grant v Downs at 689 per Stephen, Mason and Murphy JJ) by the client. The question of whether litigation was reasonably contemplated, apprehended or anticipated by the client at the relevant time is one of fact to be determined by reference to objective criteria: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 558. As stated in Cross on Evidence at [25235], 'since the ''anticipation'' of litigation which must be reasonable is a state of mind, it must be found in a human mind'. In the present case, the anticipation must be found in the mind of Mr Williams who requested the valuation report.
Furthermore, in order to attract privilege, a document containing a third party communication must have been brought into existence for the dominant purpose of preparing for, or for use in, existing or contemplated judicial or quasijudicial proceedings: AttorneyGeneral (NT) v Maurice (1986) 161 CLR 475 at 490.
Mr McQueen submitted that the valuation and associated emails were not brought into existence for the dominant purpose of preparing for, or use in, existing or contemplated litigation, as the valuation was obtained for either or both of the following purposes:
1)The City considering whether it would elect to acquire the land instead of paying compensation pursuant to s 187 of the PD Act; and
2)Negotiations between the parties in relation to the value of the land for its purchase by the City from Fabray which were taking place in good faith in the mediation in proceeding DR 7 of 2011.
Moreover, Mr McQueen submitted that the City did not reasonably contemplate, apprehend or anticipate litigation in relation to the value of the land for its purchase at the time when the valuation report was sought and produced, because, until the mediation on 30 June 2011, the City and Fabray were negotiating in good faith in relation to the value of the land for purchase and Fabray did not take any action or give any indication that it intended to commence litigation in relation to the value of the land.
However, it is apparent from Mr Williams' statement to Mr Roberts on 11 March 2011 that the valuation was not required in order for the Council to determine whether to elect to purchase the land under s 187 of the PD Act. This is also apparent from Mr Williams' letter to Mr Wilson dated 18 March 2011 in which the valuation was sought. The letter stated that the matter was going to Council on 5 April 2011 with a recommendation to elect to purchase the land, whereas the valuation was only required to be provided by 14 April 2011.
The Tribunal is also satisfied that the valuation and associated emails were brought into existence not for the dominant purpose of negotiations between the parties in the absence of reasonably contemplated, apprehended or anticipated litigation, but rather for the dominant purpose of preparing for, or for use in, litigation in relation to the value of the land that was reasonably contemplated, apprehended or anticipated by the City. The Tribunal has arrived at this finding for each of two reasons.
First, it is apparent from the letter from Mr Williams to Mr Wilson that Mr Williams (incorrectly) considered that proceeding DR 7 of 2011 involved the determination of compensation and/or the value of the land for its purchase by the City. In this regard, Mr Williams referred to Fabray's claim for compensation and said that 'They have already referred the matter to the State Administrative Tribunal'. The immediately following reference to 'Mediation was held at SAT on 15 February 2011' clearly indicates an understanding that the mediation was in respect of the matter referred by Fabray to the Tribunal. Furthermore, the next statement that 'Following discussions, the mediation was deferred to 15 April 2011 to allow time for the City to elect to purchase the property plus for both parties to obtain valuation advice' indicates an understanding that the ongoing mediation would involve the value of the land for its purchase by the City. This indication is supported by the fact that the valuation report was requested to be provided before 14 April 2011, that is, prior to the next stage of the ongoing mediation in proceeding DR 7 of 2011 on 15 April 2011.
Mr Williams clearly misunderstood the scope of proceeding DR 7 of 2011. That proceeding involves the review of the City's decision to refuse development approval, not the determination of compensation and/or the value of the land for its purchase by the City. However, Mr Williams' misapprehension as a non-lawyer as to the scope of proceeding DR 7 of 2011 is understandable, because, essentially from the outset of that litigation, the proceeding was directed to the value of the land for its acquisition by the City, rather than to the development application. As Mr McQueen said in the course of his submissions, the 'litigation concerning the development was suspended in effect and the SAT mediation was used as a forum for these negotiations [as to the value of the land for its purchase by the City] to take place'. Significantly, the 'negotiations' as to the value of the land occurred in the form of a mediation conducted by a member of the Tribunal, rather than as direct negotiations between the parties.
As Mr Williams considered that proceeding DR 7 of 2011 involved or at least included the determination of compensation and/or land value and sought the valuation as at the date of the (then) proposed election to purchase with reference to the mediation as part of proceeding DR 7 of 2011, the City reasonably contemplated, apprehended or anticipated litigation in relation to the value of the land. Indeed, Mr Williams mistakenly considered that the proceeding in which the City was engaged in mediation was that litigation. Furthermore, it is apparent from the letter of instruction that the valuation was brought into existence for the dominant purpose of preparing for, or use in, the mediation in DR 7 of 2011.
Second, quite apart from Mr Williams' mistaken understanding as to the scope of proceeding DR 7 of 2011, the valuation report was brought into existence with reference to and for the dominant purpose of preparation for, or use in, reasonably contemplated, apprehended or anticipated valuation proceedings, as:
(a)the parties were seeking to resolve land value by means of the Tribunal's mediation facility in proceeding DR 7 of 2011, thereby avoiding the need for one of them to have to commence a valuation proceeding in the Tribunal for that purpose; and
(b)the valuation was obtained by the City in the context of the mediation process.
Had the parties not sought to resolve the value of the land for its purchase by the City through the mediation process in proceeding DR 7 of 2011, and had the Tribunal not allowed the mediation to be used to seek to resolve this underlying issue between the parties, one or other of the parties would have had to commence a separate proceeding in SAT to obtain use of the mediation facility. Significantly, not only did Fabray have a right to commence litigation in the Tribunal for a determination of the value of the land, but the City was also conferred with the equivalent right under s 188(3)(b) of the PD Act. Section 188(3)(b) of the PD Act enabled the City to apply to the Tribunal for a determination of the value of the land within 12 months of the date on which the City elected to acquire the land.
Thus, determined objectively, when it requested and obtained the valuation report, the City reasonably contemplated, apprehended or anticipated litigation in relation to the value of the land and the valuation report and associated emails were brought into existence for the dominant purpose of preparing for, or for use in, such proceedings. The valuation report and associated emails are, therefore, subject to legal professional privilege.
Should the Tribunal decline to order production in the exercise of discretion?
If the documents were not subject to legal professional privilege, the Tribunal would have declined the order sought by Fabray in the exercise of discretion under s 34(5) of the SAT Act. This is because the valuation report and associated emails were brought into existence in the context of a mediation process conducted by the Tribunal with the aim of resolving the value of the land for its purchase by the City. As has been observed, one of the benefits of facilitative dispute resolution, including, in particular, mediation in the Tribunal is that it:
… can involve discussion and resolution of broader issues than those which are strictly the subject of the planning review application. The [T]ribunal has taken the view that, where it is within the capacity of its resources, it is in the public interest to facilitate broader dispute resolution and avoid further disputation. For example, the [T]ribunal has enabled discussion and resolution of strategic planning issues in circumstances where the planning review application related only to a planning assessment (development or subdivision) application.
(DR Parry 'The use of facilitative dispute resolution in the State Administrative Tribunal of Western Australia Central rather than alternative dispute resolution in planning cases', 27 EPLJ 113 at 128).
This benefit of facilitative dispute resolution was termed a 'super resolution' in this article. In proceeding DR 7 of 2011, the parties and the Tribunal sought to achieve a 'super resolution' of the broader or underlying issue between the parties, namely the value of the land for its purchase by the City. Had the Tribunal succeeded in mediating the value of the land, then the development application would presumably have been rendered otiose and the commencement of proceeding DR 250 of 2011 for the determination of land value or equivalent litigation by the City would have been unnecessary.
It would be contrary to the public interest to facilitate broader dispute resolution and avoid further disputation to make a direction requiring the production of the valuation report and the associated emails. To do so would discourage parties from engaging is a 'super resolution' where the Tribunal is prepared to direct its facilitative dispute resolution processes to that end and thereby avoid further or ongoing disputation between parties.
Conclusion
As the documents sought by Fabray are the subject of legal professional privilege, the Tribunal does not have power to make a direction requiring their production under s 34(5) of the SAT Act.
However, even if the documents were not subject to legal professional privilege, the Tribunal would have declined to order their production in the exercise of discretion.
Order
In consequence, the Tribunal makes the following order:
1.The application by the applicant for an order pursuant to s 34(5) of the State Administrative Tribunal Act2004 (WA) that the respondent be required to produce documents 9, 12 and 13 referred to in the schedule to the respondent's determination of an application for access to documents under the Freedom of Information Act 1992 (WA) on 16 September 2011 is dismissed on the basis that the documents are subject to legal professional privilege.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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