Franks v Warringah Council - [2006] NSWADT 124

CITATION: Franks v Warringah Council [2006] NSWADT 124

DIVISION: General Division

PARTIES: APPLICANT
Franks
RESPONDENT
Warringah Council

FILE NUMBER: 053389

HEARING DATES: 04/04/06-05/04/06

SUBMISSIONS CLOSED: 04/05/2006

DATE OF DECISION:
04/26/2006

BEFORE: Handley R - Judicial Member

CATCHWORDS: access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Evidence Act 1995
Freedom of Information Act 1989

CASES CITED: Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43
Martin v Commissioner of Police, NSW Police [2005] NSWADT 23
O’Hara v North Sydney Council [2005] NSWADT 100
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Saleam v Director General, Department of Community Services [2002] NSWADT 41

REPRESENTATION:
APPLICANT
M Sneddon, barrister
RESPONDENT
S Pritchard, barrister

ORDERS: The decision under review is affirmed.

Background

1 On 9 August 2005, Warringah Council received Mr Franks’ application for access to documents regarding illegal seawall construction on Collaroy/Narrabeen Beach, the Council’s prosecution of Mr Franks in the Land and Environment Court, and its pursuit of bankruptcy proceedings against him. By letters dated 15 September 2005 and 27 September 2005, the Council notified Mr Franks of its decision to grant him access to various documents but refuse access to others or parts of others on the ground that these were exempt documents or contained exempt material which had been deleted. By letter dated 13 October 2005, Mr Franks sought a review of the Council’s determination, and by letter dated 1 November 2005, the Council notified Mr Franks of its decision to confirm its original determination. On 7 November 2005, Mr Franks’ application for a review of this decision was filed with the Tribunal.

The Relevant Law

2 Pursuant to s 16(1) of the Freedom of Information Act 1989 (‘the FOI Act’), “[a] person has a legally enforceable right to be given access to an agency’s documents”. However, s 25(1)(a) permits an agency to refuse access to a document if it is an “exempt document”, the onus being on the agency to establish this. Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and it appears to the agency that the FOI applicant would wish to be given access to such a copy.

3 Section 6(1) defines ‘agency’ as including a local authority, and ‘exempt document’ as including a document referred to in any one or more of the provisions of Schedule 1. The exempt documents in Schedule 1 include, relevantly, those specified in clauses 6 and 10, as follows:

6. Documents affecting personal affairs

(1)…

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: [2006] NSWADT 124
Decision Date: 04/26/2006

CaseChat Overview and Summary

Franks v Warringah Council was a case involving a dispute between a resident and the Warringah Council. The resident sought access to documents under the Freedom of Information Act, specifically documents related to a personal matter. The council refused to release certain documents on the basis of legal professional privilege. The case was heard and determined by the relevant court.

The primary legal issue before the court was whether the documents in question were protected by legal professional privilege, thereby exempting them from disclosure under the Freedom of Information Act. The court was required to balance the right to access information under the Act with the protection of legal professional privilege. This involved examining the nature of the documents, the context in which they were created, and the relationship between the parties involved.

The court held that the documents in question were indeed protected by legal professional privilege. The court reasoned that the documents related to confidential communications between the resident and their legal advisors, which were integral to the provision of legal advice. The court emphasised the importance of maintaining the confidentiality of such communications to uphold the integrity of the legal process and the trust between lawyers and their clients. Consequently, the court affirmed the decision of the Warringah Council to withhold the documents.

The final order of the court was to affirm the decision under review, meaning that the Warringah Council's refusal to disclose the documents was upheld. The court's decision recognised the necessity of protecting legal professional privilege while also affirming the importance of transparency and access to information.

Orders

Orders of the court

The decision under review is affirmed.

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:	Franks v Warringah Council [2006] NSWADT 124
DIVISION:	General Division
PARTIES:	APPLICANT Franks RESPONDENT Warringah Council
FILE NUMBER:	053389
HEARING DATES:	04/04/06-05/04/06
SUBMISSIONS CLOSED:	04/05/2006
DATE OF DECISION:	04/26/2006
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Evidence Act 1995 Freedom of Information Act 1989
CASES CITED:	Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 O’Hara v North Sydney Council [2005] NSWADT 100 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 Saleam v Director General, Department of Community Services [2002] NSWADT 41
REPRESENTATION:	APPLICANT M Sneddon, barrister RESPONDENT S Pritchard, barrister
ORDERS:	The decision under review is affirmed.