Grubisic v General Manager, Burwood Council - [2004] NSWADT 261

CITATION: Grubisic v General Manager, Burwood Council [2004] NSWADT 261

DIVISION: General Division

PARTIES: APPLICANT
Anna Grubisic
RESPONDENT
General Manager, Burwood Council

FILE NUMBER: 043006

HEARING DATES: 18/08/2004

SUBMISSIONS CLOSED: 09/08/2004

DATE OF DECISION:
11/12/2004

BEFORE: Higgins S - Judicial Member

APPLICATION: access to documents - adequacy of search - access to documents - legal professional privilege - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - legal professional privilege

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Evidence Act 1995

CASES CITED: Attorney General (NT) v Maurice (1986) 161 CLR 475
Brooks Meyer v Cheung [2001] NSWADT 18
Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner (2002) 213 CLR 543
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Goldberg v Ng (1995) 185 CLR 83
Grant v Downs (1976) 135 CLR 674
Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135
Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADT 40
Mann v Carnell (1999) 201 CLR 1

REPRESENTATION: APPLICANT
R Cianfrano, as agent
RESPONDENT
J Worthy, solicitor

ORDERS: 1.With the exception of the tax invoice dated 5 November 2003, the decision of the Respondent is affirmed; 2.The decision of the Respondent in respect of the tax invoice dated 5 November 2003 is set aside and in substitution thereof a decision that the applicant be provided with a copy of the tax invoice with the exempt material, as set out in this decision, being deleted; 3.No orders as to costs.

Background

1 This is an application by Mrs Grubisic seeking review of a decision by a delegate of the General Manager (“the General Manager”) of Burwood Council (“the Council”) to refuse her access to 4 documents on the grounds that they were exempt as being legally professionally privileged.

2 Mrs Grubisic made her FOI request in a letter dated 24 November 2003. That letter stated as follows:

In relation to all business affairs and all personal documents in the schedule set out below from 1 to 7 in relation to Mrs A. Grubisic’s property, which is defined as 53A and 53B Webb Street, Croydon NSW 2134.

These documents are to include the following:

1. All phone call records.

2. All file notes.

3. All diary notes.

4. All fax transmission records.

5. All memo records, all email records and all bills of paper DTC”.

3 On 3 December 2003, Ms Julie Hartshorn, a delegate of the General Manager prepared a written determination of Mrs Grubisic’s FOI request. In that determination, Ms Hartshorn stated that she had considered Mrs Grubisic’s application and had decided to photocopy the documents on Council’s file No.…

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: [2004] NSWADT 261
Decision Date: 11/12/2004

CaseChat Overview and Summary

The case of Grubisic v General Manager, Burwood Council involved a dispute between the applicant, Grubisic, and the General Manager of Burwood Council. The crux of the matter was the Council's refusal to provide the applicant with a copy of a tax invoice unless she paid a fee for the removal of certain exempt material. The applicant sought judicial review of the decision, arguing that the exempt material should not have been redacted and that the fee was not lawfully chargeable. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the Council was correct in charging the applicant a fee for the removal of exempt material from the tax invoice and whether such material could lawfully be redacted. This required the court to interpret relevant legislation and case law regarding the disclosure of documents and the chargeability of fees in such contexts. Additionally, the court had to determine if the Council's actions were in accordance with the applicable statutory framework.

In delivering the judgment, the court found that the Council was not entitled to charge a fee for the removal of the exempt material, and that the exempt material should not have been redacted from the document provided to the applicant. The court held that the legislation permitted the applicant to receive a copy of the tax invoice with the exempt material redacted, but not to pay a fee for that redaction. Consequently, the court set aside the Council's decision in respect of the tax invoice dated 5 November 2003, substituting it with an order for the Council to provide the applicant with a copy of the invoice with the exempt material deleted. The court affirmed the Council's other decisions. No orders were made regarding costs.

Orders

Orders of the court

1.With the exception of the tax invoice dated 5 November 2003, the decision of the Respondent is affirmed; 2.The decision of the Respondent in respect of the tax invoice dated 5 November 2003 is set aside and in substitution thereof a decision that the applicant be provided with a copy of the tax invoice with the exempt material, as set out in this decision, being deleted; 3.No orders as to costs.

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:	Grubisic v General Manager, Burwood Council [2004] NSWADT 261
DIVISION:	General Division
PARTIES:	APPLICANT Anna Grubisic RESPONDENT General Manager, Burwood Council
FILE NUMBER:	043006
HEARING DATES:	18/08/2004
SUBMISSIONS CLOSED:	09/08/2004
DATE OF DECISION:	11/12/2004
BEFORE:	Higgins S - Judicial Member
APPLICATION:	access to documents - adequacy of search - access to documents - legal professional privilege - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Evidence Act 1995
CASES CITED:	Attorney General (NT) v Maurice (1986) 161 CLR 475 Brooks Meyer v Cheung [2001] NSWADT 18 Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner (2002) 213 CLR 543 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Goldberg v Ng (1995) 185 CLR 83 Grant v Downs (1976) 135 CLR 674 Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135 Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADT 40 Mann v Carnell (1999) 201 CLR 1
REPRESENTATION:	APPLICANT R Cianfrano, as agent RESPONDENT J Worthy, solicitor
ORDERS:	1.With the exception of the tax invoice dated 5 November 2003, the decision of the Respondent is affirmed; 2.The decision of the Respondent in respect of the tax invoice dated 5 November 2003 is set aside and in substitution thereof a decision that the applicant be provided with a copy of the tax invoice with the exempt material, as set out in this decision, being deleted; 3.No orders as to costs.