Holman v Warringah Council

Case [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Publication restriction:Paragraphs 30 to 64 are not for publication to the public and applicant.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…

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Holman v Warringah Council [2015] NSWCATAD 215
Case
[2015] NSWCATAD 215
Decision Date

CaseChat Overview and Summary

Holman v Warringah Council involved the applicant, Holman, seeking access to certain documents held by Warringah Council under the Government Information (Public Access) Act 2009 (GIPA). Holman requested information related to legal advice provided to the Council in connection with a proposed development on land owned by the applicant. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issue for the court was whether the documents in question were exempt from disclosure under section 22A of the GIPA Act, which protects client legal privilege. The applicant argued that the documents were not privileged, while the Council contended that the advice was privileged and should not be disclosed. The court had to determine the scope of client legal privilege and whether the documents fell within the exemption.

The court examined the nature of the documents and the context in which they were created. It found that the documents contained legal advice prepared by the Council's solicitors in relation to the proposed development. The court concluded that the advice was prepared in the course of an adversary proceeding, which qualified as client legal privilege under section 118 of the Evidence Act 1995 (NSW). Consequently, the documents were exempt from disclosure under section 22A of the GIPA Act. The application for access to the documents was dismissed.

The Land and Environment Court ordered that the application be dismissed and that the documents remain exempt from disclosure. The Council was not required to provide the documents to the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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