Holman v Warringah Council

[2015] NSWCATAD 215

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Holman v Warringah Council [2015] NSWCATAD 215
Hearing dates:	23 July 2015 and 28 September 2015.
Decision date:	19 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Walker Senior Member
Decision:	Decision under review varied.
Catchwords:	GOVERNMENT INFORMATION – access application - client legal privilege
Legislation Cited:	Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Evidence Act 1995; Government Information (Public Access) Act 2009.
Cases Cited:	Charteris v Leichardt Municipal Council [2000] NSWADT 81; Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Grant v Downs (1976) 135 CLR 674; Larsson v Office of Environment and Heritage [2014] NSWCATAD 136; Nature Conservation Council of New South Wales v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195; In the matter of Southland Coal Pty Ltd (receiver and managers appointed) (in liquidation) [2006] NSWSC 899; Starr v Superannuation Administration Corporation [2015] NSWCATAD 76; Sydney Airports Corporation v Singapore Airlines Ltd [2005] NSWCA 47.2
Category:	Principal judgment
Parties:	John Holman (Applicant) Warringah Council (Respondent)
Representation:	Counsel: J Reid (Respondent)   Solicitors: Schmidt-Liermann Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	1510120
Publication restriction:	Paragraphs 30 to 64 are not for publication to the public and applicant.

Judgment

1. On 25 February 2015 the applicant Mr John Holman applied to this tribunal for a review of a decision taken by Warringah Council on 18 February 2015 to refuse access under the Government Information (Public Access) Act 2009 (GIPA Act) to certain documents held by the council in connection with a stormwater drainage problem affecting his property at [address].

2. Previously, on 1 July 2014, Mr Holman had applied to the council under the GIPA Act for access to “All correspondence and reports done by Council or any consultants for the storm issue at [address]” (a chronology is given in the statement of Mr John Warburton, deputy general manager of the Council, in exhibit R6).

3. On 6 August 2014, the council gave Mr Holman notice of its decision to provide partial access to the information requested (exhibit A1). The applicant then requested an internal review of the council’s decision “To apply a status of ‘legal professional privilege’ to so many documents”. On 16 September 2014, the council affirmed its decision to refuse access to the information sought on the basis of an overriding public interest against disclosure derived from cl 5 of schedule 1 to the GIPA Act, relating to client legal privilege (legal professional privilege) (exhibit A2).

4. The applicant then on 24 September 2014 sought a review by the Information Commissioner of the council’s decision to withhold documents. The commissioner’s review report of 28 January 2015 (exhibit A3) concluded that the council’s decision was not justified under the GIPA Act. It stated that the council had not adequately supported its findings on client privilege, had not contemplated whether it would be appropriate to waive the privilege before refusing to provide access on the basis of client privilege, had apparently not considered personal factors affecting the applicant under s 55(2) and had not correctly set out its notice of decision in accordance with s 61 of the GIPA Act.

5. Pursuant to the Information Commissioner’s recommendation, the respondent on 4 February 2015 informed the applicant and the Information Commissioner of its intention to conduct another internal review. The council issued its decision on this second internal review on 18 February 2015 (exhibit A4), again refusing access on the basis of client privilege. This second internal review decision is the subject of Mr Holman’s application to this tribunal.

6. The issue in these proceedings is thus whether the decision to refuse access on the ground of client privilege is the correct and preferable one within the meaning of s 63 of the Administrative Decisions Review Act 1997.

Applicable legislation

7. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5).

8. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).

9. By s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 to that Act. Clause 5(1) of Schedule 1 provides:

It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

10. In these proceedings, the burden of establishing that the decision to refuse access to the information is justified lies on the respondent (GIPA Act, s 105(1)).

11. Also relevant are s 118 and 119 of the Evidence Act 1995:

118   Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)  a confidential communication made between the client and a lawyer, or

(b)  a confidential communication made between 2 or more lawyers acting for the client, or

(c)  the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119   Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)  a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b)  the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

12. No oral evidence was adduced by either party.

Respondent’s submissions

13. By way of written submissions, the respondent relied in part on the reasons for decision in the second internal review determination of 18 February 2015. Those reasons inter alia noted the presumption in favour of disclosing government information contained in s 5 of the GIPA Act. As Montgomery JM had stated in Nature Conservation Council of New South Wales v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195, [25], that presumption can be rebutted only by proving that there is a “conclusive presumption of an overriding public interest against disclosure” or an “overriding public interest consideration against disclosure”. In making a determination, agencies must apply the public interest test under s 13 of the Act, which requires balancing public interest considerations in favour of disclosure and those against disclosure. There will be a public interest against disclosure only when, on balance, the latter outweigh the former.

14. Shortly after council officers received notice of Mr Holman’s concerns about overland stormwater flow on his property, they sought legal advice from the council’s in-house lawyers, who in turn notified the council’s insurer and its solicitors for the purpose of obtaining legal advice. All of the documents excluded were created for the dominant purpose either of obtaining legal advice, or of obtaining information to assist in the provision of legal advice. Both of the council’s in-house lawyers hold current practising certificates. Neither had any personal knowledge of, or other relevant interest in, the subject of the applicant’s complaint to the council. The general manager insists on the professional independence of the in-house lawyers, the most senior of whom reports directly to him.

15. The council noted the public interest considerations in favour of disclosure and also the applicant’s personal factors under s 55(2) centering on the long-standing problem he has had with stormwater at his home address. The relevant public interest consideration against disclosure was client privilege, which is conclusively presumed by cl 5 of schedule 1 of the Act to be an overriding public interest against disclosure of information. The council did not consider that it would be appropriate to waive that privilege.

16. Client privilege required three elements:

The existence of a client and lawyer relationship;

The confidential nature of the communication or document; and

the communication or document was brought into existence for the dominant purpose either of

enabling the client to obtain, or the lawyer to give, legal advice or provide legal services (Evidence Act s 118), or

for use in existing or anticipated legislation (Evidence Act s 119).

17. The council had received information concerning the stormwater issue on the applicant’s property. Council officers referred the issue to the council’s in-house lawyers, who in turn retained the services of external lawyers and relevant experts as part of the council’s normal investigative process. All the documents listed were therefore the subject of client privilege as they were created for the dominant purpose of obtaining legal advice.

18. Client privilege falls within schedule 1 and is therefore a conclusive presumption against disclosure. The council intentionally created those documents with privileged status. While noting that there are factors in favour of disclosure, both of a general nature and others specific to the applicant’s personal situation, the respondent argued that those factors do not outweigh the significance of maintaining client privilege, both in this particular case and more generally where similar instances occur.

19. In further written submissions filed on 5 June 2015 (exhibit R5), the applicant argued inter alia that if there is a public interest against disclosure of the kind found in schedule 1, then no further balancing is required. Where an agency such as the respondent in the present proceedings forms the view that there is an overriding public interest against disclosure, the agency then has no discretion to release the documents sought. That applies to documents identified in schedule 1, such as client privilege. The proper approach to s 14 (apart from conclusive presumption cases) was set out in Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 18, [24] – [26].

20. Documents over which commercial-in-confidence is claimed need only contain elements of the factors in (a) to (e) of the definition of “commercial-in-confidence” of a contract: Nature Conservation Council at [151]. Further, the test is that there need only be a possibility of commercial disadvantage, and if that possibility is found to exist, then the scales tilt against public disclosure: at [158].

21. The Evidence Act applies to claims of client legal privilege (legal professional privilege) concerning overriding public interest claims against disclosure; the common law principles do not apply: Starr v Superannuation Administration Corporation [2015] NSWCATAD 76. The use of the words “client legal privilege” in schedule 1, cl 5 of the GIPA Act adopts the language of the Evidence Act tests in relation to the existence of client legal privilege and waiver of that privilege: Larsson v Office of Environment and Heritage [2014] NSWCATAD 136, [25] (and other cases cited). Consequently, if documents are captured by ss 118 or 119 of the Evidence Act, there is a conclusive presumption of an overriding public interest against disclosure. That, the council argued, was the case in this instance.

22. The applicant had presented no evidence that the privilege had been waived in relation to documents accidentally sent to the applicant by the respondent. The accidental sending of material to an applicant does not entail a waiver of client legal privilege: Charteris v Leichardt Municipal Council [2000] NSWADT 81, [2001] NSWADTAP 12.

23. In oral submissions at the hearing, Ms Reid said inter alia that the applicant contacted the council in May 2008 reporting the existence of a stormwater problem on his property and his belief that correcting it was the council’s responsibility. Correspondence was also exchanged concerning damage to motor vehicles caused by large potholes created by the stormwater flow (exhibit R4). These approaches triggered the council’s seeking of legal advice, its notification of the insurer and its obtaining of outside legal assistance. As the dominant purpose for the creation of the documents was the obtaining of legal advice or the factual background to it, they were covered by legal profession privilege.

24. The council’s legal officers, Mr Eskil Julliard and Ms Vivienne Ingram, both held current practising certificates and their contracts of employment dated 23 March 2012 and 30 August 2012 respectively made clear their independence as legal advisers. In each case clause 4.5 acknowledged the “need for independence of the Employee due to the Employee’s role as Corporate Lawyer” and “that, when acting as Legal Practitioner, the Employee’s obligations as a legal practitioner, including to the court, are paramount and prevail over the Employee’s duties to the Council….”

25. The applicant’s 2008 emails (exhibit R4), while polite, made it clear that there was damage and that the applicant held the council liable for it. They triggered the council’s seeking of legal advice. His letter of 17 August 2014 (exhibit R2) queried the council’s invoking of legal professional privilege and expressed the view that “Warringah Council has something to hide”. The 29 June 2012 letter from the applicant’s solicitor (exhibit R3) also maintained the firm view that the council was responsible. In the circumstances, balancing the need for transparency against legal professional privilege considerations, the council decided that no waiver was appropriate and that the documents should not be disclosed.

26. The council agreed that the definition of client legal privilege in ss 118 and 119 of the Evidence Act applied, as well as the definitions of “client” and “lawyer” in s 117. Both the in-house lawyers and the external lawyers advising the council fell within the definitions, as did other persons providing information relevant to the giving of advice. After 29 June 2012, s 119 was brought to bear because of the existence of potential litigation.

27. On the respondent’s application, a part of the council’s submissions was made in private session pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act).

28. Ms Reid directed the tribunal’s attention to the documents for which privilege against disclosure is claimed and which form part of the file of conclusive presumption documents provided in confidence on 28 April 2015, making up confidential exhibit CR8, starting with page 13 (the numbers refer to the page numbers of exhibit CR8), which is a chronology of events relating to the stormwater problem at 16 Wyatt Avenue. As the chronology showed, there had been an ongoing issue between the parties which had led to an earlier payment of $7822.82 to Mr Holman for stormwater damage. The proposed new easement had not yet been granted, on legal advice.

29. [Not for publication]

30. [Not for publication]

31. [Not for publication]

32. [Not for publication]

33. [Not for publication]

34. [Not for publication]

35. [Not for publication]

36. [Not for publication]

37. [Not for publication]

38. [Not for publication]

39. [Not for publication]

40. [Not for publication]

41. [Not for publication]

42. [Not for publication]

43. [Not for publication]

44. [Not for publication]

45. [Not for publication]

46. [Not for publication]

47. [Not for publication]

48. [Not for publication]

49. [Not for publication]

50. [Not for publication]

51. [Not for publication]

52. [Not for publication]

53. [Not for publication]

54. [Not for publication]

55. [Not for publication]

56. [Not for publication]

57. [Not for publication]

58. [Not for publication]

59. [Not for publication]

60. [Not for publication]

61. [Not for publication]

62. [Not for publication]

63. [Not for publication]

64. The respondent submitted that all the documents were confidential communications between experts and lawyers for the dominant purpose of obtaining legal advice concerning possible liability, understanding the applicant’s offers and the council’s legal responsibility. The documents involved clearly legal functions relating to legal advice from the in-house and external lawyers, as well as liaison with the council’s insurer. They arose out of the lawyer-client relationship and the experts understood that their communications and the sending of copies were confidential and occurred in the context of the claim for stormwater damage. There had been no waiver of client legal privilege. After 29 June 2012, s 119 of the Evidence Act became the relevant provision instead of s 118. Client legal privilege therefore attached to the documents and should not be treated as having been waived in the circumstances of the case.

65. At 3:55 pm the confidential hearing concluded and it became apparent that the matter would need to be adjourned part heard. The matter was stood over to 28 September 2015 at 10:00 am. On the adjourned date, following the applicant’s submissions, the respondent submitted in reply that the subject information had been withheld from early in the exchanges with Mr Holman because they were the subject of client privilege. The applicant’s suspicions did not entitle him to access, as they did not constitute a reason for obtaining access.

66. The respondent’s decision had not changed over time although it had been reviewed several times. The Information Commissioner did not decide that client privilege did not apply, but simply criticized the reasons given by the applicant. The report had pointed out that s 61 provided no rationale for refusing access but provided for what should be included in an agency’s notice of decision to refuse access. In its review decision following the Information Commissioner’s recommendations, the respondent had given as much detail about its reasons as it could, without waiving client privilege.

67. It was important to bear in mind that the personal factors referred to in s 55 could not be weighed against client privilege. To do so would be an error. Nor does the presumption in favour of disclosure override the privilege. The respondent had taken account of the personal factors in relation to its decision on the question of waiver, which was not a reviewable decision.

68. In relation to the question of whether the in-house lawyers were independent, Ms Reid pointed out that while Ms Ingram was acting as director of corporate affairs, Mr Julliard had the carriage of the matter. Each document thus had the dominant purpose of giving or seeking legal advice or in relation to the provision of professional legal services relating to potential litigation. Here the documents are communications with lawyers, and in some instances communications where lawyers were seeking to be properly informed so that they could advise the client.

69. Southland Coal sets out in para 14 the factors to be applied in relation to client privilege. It describes at two-stage process in which the decision-maker first satisfies itself that the communication or contents, disclosure or which is sought to be prevented, satisfies the requirements set out in ss 118 or 119 or both. The second stage is to ask whether the production of the information would disclose a confidential communication. Dominant purpose is a question of fact, and in this case it is clear that the documents had the requisite dominant purpose. They were not created in the ordinary course of business but pursuant to legal advice. The proper administration of the council requires that it be able to obtain confidential advice in relation to its activities.

Applicant’s submissions

70. On behalf of the applicant Mr Schmidt-Liermann submitted that the crux of the matter was that the early on in the history of the controversy the applicant became concerned that the respondent was not being as forthright as it could be, partly because the reasons it gave for its position changed over time. By the time the applicant wrote his letter to the council dated 17 August 2014 (exhibit R2), he had reached a conclusion, as he said in the letter, that “from the GIPA response [he concluded that] Warringah Council has something to hide”. He had seen the Worley Parsons report, which did not appear to be privileged and had now been released. The suspicions thus aroused had the effect of tainting all the other withheld documents with the same concerns.

71. Following the internal review report of 16 September 2014 (exhibit A2) the applicant had sought a review by the Information and Privacy Commission. In her report of 28 January 2015, the Information Commissioner had concluded in para 36 that the council’s decision was not justified and recommended in para 37 that the council make a new decision by way of internal review, following the guidance of the report. The council’s internal review decision pursuant to that recommendation, dated 18 February 2015 (exhibit A4) decided to refuse access to the information (para 5.1). In para 5.2.4.2 the reviewing officer concluded that all of the documents listed were the subject of legal professional privilege as they were created for the dominant purpose of obtaining legal advice.

72. Under s 9 of the GIPA Act the applicant has a right to government information unless there is an overriding public interest against disclosure, following the application of the balancing test: s 5. The presumption is in favour of the release of information. It was not disputed that the material in question constituted government information. The internal review had, however, overlooked the personal factors of the application under s 55 of the Act, as the Information Commissioner had pointed out in her report, paras 17 and 18. The personal circumstances in this case included the applicant’s endeavours to resolve the stormwater issue and find a workable solution. That also appeared to be the intent of the Worley Parsons report and the site meeting of 4 July 2013. There would have been a report prepared following that meeting, and it was likely to be found in pages 91 to 149 in exhibit CR8.

73. The council’s review decision of 18 February 2014 at page 7 had said that the personal factors did not outweigh the significance of maintaining client privilege, although that could not be reconciled with the goals of the GIPA Act as set out in s 15. The Council decision not to wave client privilege had not adequately considered the personal factors. The Information Commissioner had said in para 28 of her report that there was nothing in the notice of decision to indicate that the agency had contemplated whether it would be appropriate to waive privilege before refusing to provide access. The report went on to say in para 29 that in dealing with future GIPA applications for which client privilege was claimed, the council should comply with the requirements of cl 5(2), schedule 1 to the GIPA Act. While the council had stated that no further balancing was required when client privilege was claimed, the Information Commissioner had said that the council should have considered waiver before refusing access.

74. In a review by the Information Commissioner, the onus of establishing that the decision is justified lies on the agency: s 97. The same applies in review proceedings in the tribunal: s 105. The Information Commissioner had formed the view (para 23) that some of the documents reviewed might meet the criteria for client privilege, but was not satisfied that the council had justified its decision to refuse access in relation to all the documents. But the council’s response in para 5.2.1 of its 18 February 2015 decision was the full extent of its reasoning in reply to the Information Commissioner’s criticisms.

75. The council in its initial review decision had said at para 4.1 that there was an overriding public interest against disclosure of the information in accordance with s 61 of the GIPA Act. “This statement appears misleading,” the Information Commissioner said, “as section 61 is not in itself a rationale for finding an overriding public interest against disclosure of government information”, but provided for “ what should be included in an agency’s notice of decision to refuse to provide access….”. The council’s notice of decision itself did not meet the requirements of s 61 in that it did not contain reasons for the decision to refuse access, or refer to sources of information on which its finding of legal professional privilege is based: paras 30 to 33.

76. There was no dispute about the application of the dominant purpose test. In this case, though the lawyers involved were said to be independent, the nature of the communications needed to be examined, as they could be several purposes at work in the creation of the document. If other purposes were subsidiary only, there would be no loss of client privilege, but the situation would be different if the information would have been prepared even if there had been no dominant of providing legal advice. The question in this case was whether the correspondence was prepared for the purposes of legal advice, or as part of a search for a solution. In this case the dominant purpose was not the seeking of legal advice or the conduct of litigation.

77. In applying the dominant purpose test, the tribunal should have regard to Austin J’s formulation of the uncontested principles of client privilege in In the matter of Southland Coal Pty Ltd (receivers and managers appointed) (In Liq) [2006] NSWSC 899 at [14]. In Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47, the Court of Appeal had pointed out that “An in-house solicitor is, by reason of his or her position, more likely to act for purposes unrelated to legal proceedings than an external solicitor who, in the normal course, has no relevant function other than that involving legal proceedings and/or legal advice. In in-house solicitor may very well have other functions” (at [24]). In the present case Ms Ingram was for a time acting as the council’s director of corporate services, from 18 February 2008 to 21 July 2008 and from 18 February 2009 to 11 December 2009. During those periods Mr Julliard acted in Ms Ingram’s position (see email, part exhibit R1). It was possible that some communications during that period might not have been subject to client privilege because they were made in another capacity.

Consideration

78. The tribunal’s function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it and any applicable “written or unwritten law” (meaning legislation or common law). It is well established that in considering an application for review the tribunal is not confined to the material that was before the deciding agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

79. The objects of the GIPA Act as set out in s 3(1) are to advance the system of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right of access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.

80. The Act adopts a structured approach that requires decision-makers to:

1. identify relevant public interest considerations in favour of disclosure,

2. identify relevant public interest considerations against disclosure,

3. attribute weight to each consideration for and against disclosure, and

4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information: Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195, [29]).

81. The term “government information” is given a wide meaning by s 4, being defined as “information contained in a record held by an agency”. It is not disputed that Warringah Council is within the definition of “agency” and is therefore an agency to which the legislation applies, or that the information sought is “government information”.

82. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the “overriding secrecy laws” set out in schedule 1. Section 14 provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in schedule 1. There is consequently no balancing test for the determination of applications for government information falling into any of the categories in schedule 1.

83. One class of information that is subject to the conclusive presumption in s 14 is information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. An agency seeking to rely on that presumption is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on that basis: schedule 1, cl 5. The council has decided that it would not be appropriate to waive the privilege in relation to any of the documents remaining in the schedule of documents (part exhibit A2).

84. It is common ground that the question whether the information in issue falls within client legal privilege depends on the application of ss 117 to 119 of the Evidence Act 1995. The common law principles relating to client privilege do not apply: Starr v Superannuation Administration Corporation [2015] NSWCATAD 76. The respondent contends that the material falls within the privilege because it is information prepared for the dominant purpose of the lawyer providing legal advice to the respondent (s 118) or because it is information prepared for the dominant purpose of the council being provided with professional legal services relating to an “anticipated” proceeding to which the council may be a party (s 119).

85. Austin J in Southland Coal explained that assessing a claim for privilege under s 118 or s 119 is a two-stage process, the first being to be satisfied that the communication meets the requirements set out in ss 118 or 119 or both, and the second being for the decision-maker to be satisfied that production of the document would result in the disclosure of a confidential communication or the confidential contents of a document (at [14]).

86. The “legal advice” referred to in s 118 is a broad concept understood in a pragmatic sense. It is not confined to a lawyer’s telling the client the law, while acting in a professional capacity; it must also include advice as to what should prudently and sensibly be done in the relevant legal context (ibid.) The dominant purpose of the communication must be determined objectively, having regard to all the circumstances in which the communication was made, and its nature. If the document or information would have been prepared irrespective of the intention to obtain professional legal services, it will not satisfy the test laid down in Grant v Downs (1976) 135 CLR 674, 688. The existence of an ancillary purpose is not fatal to a claim for privilege, but if there are two purposes of equal weight, it is unlikely that one would dominate the other: Southland Coal at [14]. A claim for privilege will not succeed if it appears that the document is a commercial document or was brought into existence in the ordinary course of business (ibid.).

87. In this case, the event that led to the giving of legal advice within the meaning of s 118 during the relevant period was the applicant’s letter of 29 May 2008 (part exhibit R4). Although expressed in conciliatory terms, the letter made it clear that the applicant regarded the respondent as responsible for, and liable in respect of, the stormwater flooding and damage on his land.

88. The matter had a prior history dating back to 2003, when the applicant had raised the problem of stormwater drainage with the council for the first time. Following a lengthy exchange of communications, Ms Katrina Brown, the council’s Team Leader Catchment, in February 2007 informed the applicant that the council’s legal advice had been that the stormwater difficulties were the council’s problem and that it should pay for the damage caused. Subsequently, in November 2007, the council paid the applicant $7882.82 for the necessary repair work.

89. After the formal without prejudice letter of demand from the applicant’s solicitor to the respondent dated 29 June 2012 (exhibit R3), s 119 became the relevant provision as legal proceedings could be regarded as “anticipated” (if we accept the authority of the Oxford English Dictionary, the Legislature has used the wrong word here, and should have said “expected”, “likely”, or “possible”).

90. As s 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in schedule 1, the balancing test laid down in s 13 does not apply to client privilege as covered by schedule 1, cl 5. Further, the personal factors referred to in s 55, while they may be taken into account in considering whether client privilege should be waived (cl 5(2)), are not relevant to the application of the privilege.

91. Most of the legal communications in the schedule of documents that the respondent seeks to withhold are to, or from, the respondent’s in-house lawyers. It is well established that in in-house lawyer is entitled to claim privilege on behalf of his or her employer as a client. That proposition is confirmed by the fact that the word “client” in ss 118 and 119 is defined in s 117 to include “an employer (not being a lawyer) of a lawyer”: Sydney Airports Corporation at [18]. The Court of Appeal in that case added the caveat that an in-house lawyer, by reason of being in that position, is more likely to act for purposes unrelated to legal proceedings than an external lawyer who, in the normal course, has no relevant function other than that involving legal proceedings or legal advice or both. An in-house lawyer may very well have other functions: at [24].

92. There are four legally qualified persons whose names appear in the documents in issue. One is Ms Samantha Kelly, a partner in DLA Piper (formerly Phillips Fox), of whose status as a “lawyer” for the purposes of the relevant sections there can be no doubt. Eskil Julliard and Vivienne Ingram are employed by the respondent as in-house lawyers. Their current legal practising certificates are in evidence (part exhibit R1), as are their contracts of employment, dated 23 March 2012 and 30 August 2012 respectively. In each of the contracts the council acknowledges in cl 4.5 the independence of the employee’s role as corporate lawyer, that his or her obligations as a legal practitioner, including to the court, are paramount and prevail over duties to the council, and undertakes to take practicable steps to implement protocols to achieve the requisite independence. Neither lawyer had any prior personal knowledge or other interest in the subject matter of the dispute.

93. The applicant did not dispute that Ms Ingram and Mr Julliard were generally qualified to claim client privilege on behalf of the council, but raised a question about whether information created by Ms Ingram during the periods when she was acting as the council’s director of corporate services could be privileged. Ms Ingram was acting in that capacity between 18 February 2008 and 21 July 2008, and between 18 February 2009 and 11 December 2009. The respondent’s human resources manager stated that during those periods Mr Julliard acted in Ms Ingram’s position (part exhibit R1). That statement is corroborated by the documents created during those time intervals. Documents Nos. 2 to 9 were created between 18 February and 21 July 2008, and all are expressed to come from, or be sent to, Mr Julliard. Ms Ingram played no part in them. During the period 18 February to 11 December 2009 when Ms Ingram was again acting in a different capacity, no relevant documents appear to have been brought into existence.

94. A fourth lawyer named in the schedule of documents is Elizabeth Caruso. There is no practising certificate, employment contract or other document evidencing her status as a legal adviser to the respondent. Her status is relevant to only one document, however, No 33.

95. The 32 documents in issue (as Nos. 1, 10 and 12 have been released) in this case are reproduced in confidential exhibit CR8. I have examined them all. There are three classes of documents:

1. Communications between lawyers, or between a lawyer and the client

96. Documents Nos. 5, 6, 27, 28, 29 and 34 are communications (including attachments) passing between the respondent’s in-house lawyers and the council’s external lawyer, Ms Kelly. That fact alone gives rise to a prima facie inference that they were created for the purpose of giving legal advice. Ms Kelly became involved at an early stage because from the outset the applicant had taken the view that the council was liable for the damage to his property and the council therefore took the step of notifying its insurers.

97. Similarly, the in-house lawyers became involved in their professional capacities from the outset because Mr Holman’s opening communication had asserted that the council had incurred liability for the stormwater damage. The matter had a history going back to 2003 that had led to the council’s paying the applicant $7882.82 by way of compensation and there was every reason to think that a further claim for compensation would be forthcoming. That was a powerful reason why their communications with Ms Kelly and the council’s engineering staff should be seen as having come into existence for the dominant purpose, indeed the sole purpose, of providing legal advice to the council.

98. A large proportion of the other documents consists of communications passing between one or more of the in-house lawyers (or copied to them in their legal capacities) and officers of the respondent council with responsibilities relevant to matters of stormwater drainage or damage or both. The officers and the titles of their respective positions are as follows:

• Robert Barbuto, Team Leader, Stormwater Assets and Development Engineering

• Todd Dickinson, Acting Team Leader, Catchment Management

• Debbi Millener, Floodplain Engineer.

99. The documents passing between one of the in-house lawyers and any one or more of the above council officers are Nos. 2, 3, 4, 7, 8, 11, 13, 14, 15, 16, 17, 18, 19, 20 to 26, 31, 32, 33 and 35. All the communications involve the council officers in their respective engineering and management roles. All of them relate to the legal advice given, or to be given, to the council, in relation to the applicant’s claim or to seeking instructions in relation to such advice. Specifically, they embody the preparation of technical advice to enable the lawyers to give legal advice to the council. Several are marked “confidential” or “privileged” or both.

99. In the case of documents Nos. 20 to 26, Mr Michael Shaw of Civil Certification is also a party to one or more of them. As regards document 33 and its attachments, see the comment below.

(2) Communications between an in-house or external lawyer and third parties in connection with expert non-legal advice

101. Into this category fall documents Nos. 18 and 30. As was noted above, some of the documents in the series numbered 20 to 26 include Mr Michael Shaw of Civil Certification as a party. All the communications involved were plainly brought into existence for the purpose of providing expert information to assist in the provision of legal advice to the respondent or in connection with potential litigation to which it might be a party.

(3) Communications between non-lawyers in connection with the preparation of confidential information for the purpose of legal advice or litigation

102. Document 17 is an exchange between Steve Watson, Road Assets Manager, and the Group Manager, Roads, Traffic and Waste, dated 9 August 2012. It is expressed to concern the “Stormwater Issue – Wyatt Ave, Belrose – John Holman”. It plainly relates to the applicant’s claim against the respondent in so far as it impinges on Mr Watson’s area of responsibility.

103. None of the above documents was prepared in the ordinary course of the council’s business; they would not have come into existence but for the applicant’s claim that the respondent was liable for stormwater damage caused to his Belrose property, a claim that he first advanced as early as 29 May 2008 in his letter that is in evidence as exhibit R4. No other purpose or reason appears in any of them. All were prepared on a confidential basis.

104. It was submitted that the search for an agreed resolution was, or might have been, the reason for a number of the communications, but exploring the possibility of settlement has always formed an integral part of the adversarial litigation process. It is not a separate purpose.

105. I find that all the documents remaining in the schedule, except for document 33, are confidential communications, or confidential documents, prepared for the dominant purpose of providing legal advice to the respondent or for the provision of professional legal services relating to possible legal proceedings. They therefore satisfy the requirements in s 118 or s 119 or both. There is no evidence that client privilege in relation to any of them has been waived. Waiver was in any event improbable as it was clear that the applicant held the respondent responsible for the stormwater damage to his property.

106. Document 33 is an email dated 2 July 2012 (exhibit CR 8, p 283) from Elizabeth Caruso, who is described as being from “Legal Services” at Warringah Council. In the evidence there is no practising certificate, employment contract or other evidence of position or independence relating to Ms Caruso. Consequently it is not possible to find that the communication satisfies the requirements of s 118.

107. As regards all the other documents, however, I am satisfied that release of the information would result in the disclosure of a confidential communication or the confidential contents of a document. They were prepared on a confidential basis in light of years of experience with drainage problems in Wyatt Avenue in the knowledge that a formal legal claim would probably be forthcoming and, later, that litigation was likely to ensue. Proper administration requires that the council should be able to obtain confidential advice about the legal implications of its activities, and it was seeking to do so in this case.

108. I therefore make the following orders:

1. Document number 33 (exhibit CR 8, p 283) is to be released.

2. In all other respects the decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 October 2015