Hynes v General Manager, Hawkesbury City Council

[2004] NSWADT 135

CITATION:	Hynes v General Manager, Hawkesbury CIty Council [2004] NSWADT 135
DIVISION:	General Division
PARTIES:	APPLICANT William Desmond Hynes RESPONDENT General Manager, Hawkesbury City Council
FILE NUMBER:	033187
HEARING DATES:	13/02/2004
SUBMISSIONS CLOSED:	02/13/2004
DATE OF DECISION:	07/08/2004
BEFORE:	Higgins S - Judicial Member
APPLICATION:	access to documents - business affairs - access to documents - legal professional privilege - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Freedom of Information Act 1989 Local Government Act 1993
CASES CITED:	Abigroup Ltd v Akins (1997) 42 NSWLR 623 Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 Amploex Ltd v Perpetual Trustees Co (Canberra) Ltd and Ors (1996) 137 ALR 28 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 Attorney General (NT) v Maurice (1986) 161 CLR 475 Baker v Campbell (1983) 153 CLR 52 British Coal Corp v Dennis Ryde Ltd (No 2) [1988] 3 All ER 816 BT Australasia Pty Ltd v New South Wales (No 7)(1998) 153 ALR 722 Chadwick v Bowman (1886) 16 QBD 561 Ciesielski v Broadway Shopping Centre Pty Ltd [2000] NSWADT 25 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 Dingwell v Commonwealth (1992) 107 FLR 143 at 150 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 and (1999) 168 ALR 123 Goldberg v Ng (1995) 185 CLR 83 Goldberg v Ng (1996) 185 CLR 83 Grant v Downs (1976) 135 CLR 674 Infields Ltd v Rosen & Son [1938] 3 All ER 591. Johnston v Director General, Department of Housing [2003] NSWADT 125 Lake Cumbeline Pty Ltd and Ors v Effem Foods Pty Ltd (1994) 126 ALR 58 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Mann v Carnell (1999) 201 CLR 1 O’Sullivan v Morton [1911] VLR 70 Packer v DCT (2001) 179 ALR 462 Prus-Grzybowski v Everingham (1986) 44 NTR 7 R v King [1983] 1 All ER 929 Re Saxon and Australian Maritime Authority (unreported, AAT, Cth, 19 June 1995 ) Schlebaum (No.3) v Director-General, Department of Community Services & Anor [2002] NSWADT 128 South Australia v Peat Marwick Mitchell (1995) 65 SASR 72 Southwark Water Co v Quick (1878) 3QBD 315 State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 Trade Practices Commission v Sterling (1979) 36 FLR 244 Woollahra Municipal Council v Westpac Banking Corp (1994) 33 NSWLR 529
REPRESENTATION:	APPLICANT S Berveling, barrister RESPONDENT A Galasso, barrister
ORDERS:	The Tribunal orders:; a)The deemed decision of Council to refuse Mr Hynes access to the following documents is affirmed:; Documents held by Council; 39, 40, 42, 44A (to the extent that the document contains handwriting on it), 45, 46, 49, 53, 63A, 64, 66 (cover letter only) ; Documents held by Abbot Tout; 4, 5, 6, 7 (fax cover sheet and letter of 6 February 2002), 8, 9, 11, 15, 16, 20, 22, 24, 25, 26, 28, 32, 33, 35, 36, 37, 49, 45, 46, 53, 54, 55, 57, 58, 59, 63, 71, 72, 73, 83, 86, 87, 89, 90, 91, 92, 93, 94, 99, 103, 108, 109, 110, 111, 112, 114, 115, 116, 119, 124, 125, 126, 129, 130, 135, 136, 137, 139, 151, 152, 153, 154, 156, 157, 162 (fax cover sheet only), 164 (fax cover sheet only), 166, 167, 171, 172, 174, 175, 176, 177, 178, 181 (fax cover sheet only), 182, 183, 184, 185, 186, 187, 188, 189, 190, 195, 197, 198, 204, 205, 207, 208, 209, 214, 215, 216, 217, 218, 219, 221, 222, 223, 224, 225, 229A, 230 (fax cover sheet only), 237, 238, 239, 240, 241, 242, 243, 250, 257, 261, 262, 263, 265, 267, 268, 269, 270, 271, 272 (fax cover sheet only) and 276. ; b)The deemed decision of Council to refuse Mr Hynes access to the following documents is set aside:; Documents held by Council; 30, 33, 34, 37, 39A, 32A, 33A, 37A, 37B, 38A, 39, 41, 43, 46, 50, 51, 52, 54, 55, 56, 57, 61, 62, 67, 68 and 69 ; Documents held by Abbot Tout; 1, 2, 3, 10, 12, 13, 17, 19, 23, 30, 31, 34, 38, 40, 41, 42, 43, 47, 50, 52, 61, 62, 64, 68, 70, 74, 77, 79, 80, 81, 82, 88, 95, 96, 101, 102, 104, 107, 113, 118, 123, 128, 132, 133, 134, 140, 141, 142, 144, 148, 150, 158, 168, 169, 170, 179, 194, 196, 161, 173, 180, 192, 201, 202, 211, 212, 213, 226, 227, 228, 229B, 231, 232, 234, 235, 236, 251, 252, 253, 254, 259 (cover letter only), 264, 266, 277, 278, 279, 280, 281 and 282.; c)The deemed decision of Council to refuse Mr Hynes access to the following documents is remitted to Council for reconsideration pursuant to s.65(1) of the Administrative Decisions Tribunal Act 1997: ; Documents held by Council; 30A, 31A, 34A, 41A, 50A, 52A, 54A, 55A, 56A, 62A, 67A, 68A and 69A ; Documents held by Abbot Tout; 52, 117, 127, 131, 133, 138, 143, 145, 160, 169, 193, 199, 200, 203, 220, 226, 227, 235, 244, 245, 246, 247, 248, 251, 252, 253, 255, 256, 258, 259 (invoice only), 264, 266 and 275; AND any other document that is not referred to in this paragraph or paragraph (a) and (b) above.; d) Council to provide Mr Hynes with a copy of the documents referred to in paragraph (b) above within 28 days, subject to any fees that may be payable by Mr Hynes under the FOI Act.; e) Council to advise Mr Hynes of its determination in respect of the documents referred to in (c) above within 21 days.; f) Application to be set down for further directions, in respect of the outstanding matters referred to in paragraph (e) above, on a date suitable to both parties and as arranged by Registry.

BACKGROUND

1 This is an application by William Desmond Hynes (“Mr Hynes”) seeking review of a determination by Hawkesbury City Council (“Council”) to refuse him access to documents for which he had sought access pursuant to the Freedom of Information Act 1989 (“the FOI Act”).

2 On 27 May 2003 Mr Hynes had made an application to Council requesting access to the following documents (“the FOI application”):

“All documents, received and filed in written or electronic form including but not limited to communications, correspondence, memoranda, notes and reports relating to or connected with proceedings in the Land and Environment Court of New South Wales covering Lot 12, London Place, Grose Wold.”

3 On 18 June 2003, when Council had not responded to his FOI application within 21 days (as required under s. 24(4) of the FOI Act), Mr Hynes sought an internal review pursuant to s.34 of the FOI Act. When Council had failed to respond to his internal review within 14 days (as required under s. 34(6) of the FOI Act) Mr Hynes filed an application to the Tribunal, on 14 July 2003, seeking external review.

4 The Tribunal has jurisdiction to hear and determine this matter pursuant to s.53(3)(i) of the FOI Act and s.38(1) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

5 The matter first came before the Tribunal on 26 August 2003, at a planning meeting. At that planning meeting, Dr Berveling, who appeared on behalf of the Council, acknowledged that there had been a failure by Council to respond to Mr Hyne’s FOI application. At this planning meeting it was agreed that Council would file and serve a schedule of all documents in its possession that came within Mr Hynes’ FOI request. That schedule was to identify, for each document, whether access to the document was to be granted or refused. If access was to be refused, the schedule was to indicate the basis of refusal.

6 The matter then came before the Tribunal, at direction hearings and planning meetings, on 18 September 2003, 21 October 2003 and 7 November 2003.

7 As agreed, on 15 September 2003, Council filed a schedule listing the documents that it had in its possession and which came within the terms of Mr Hynes’ FOI application. That schedule listed 71 documents of which 35 were identified as being documents, which Council alleged were privileged and for which access should be refused. The grounds of refusal were that each of the documents were exempt by reason of legal professional privilege. In some cases, the council relied on an additional ground of exemption, namely that the document concerned the business affairs of a person other than Council and Mr Hynes.

8 On 3 November 2003, as part of a review of the documents in its possession that came within Mr Hynes’ FOI application, Council filed a further schedule of documents (“review schedule”). This review schedule only listed documents that Council alleged to be exempt and Mr Hynes was provided with access to the remaining documents.

9 The review schedule contained many more documents as it included not only the documents contained in the file maintained by Council (61 in total), but also documents held by the Council’s solicitors, Abbott & Tout (283 documents). As with the initial schedule of documents, the review schedule gave details of the date of each document, a description of the document and the grounds on which access was refused. Again, the basis on which access should be refused. This primarily related to the exemption of legal professional privilege. In some cases an additional ground of exemption was relied on, namely business affairs of another person.

Relevant legislation

10 Part 3 of the FOI Act makes provision for any person to make an application for access to documents held by a government agency or a Minister (s.16 and s.17, FOI Act). Where a person makes such an application the agency is required to determine whether access to the document is to be given or refused (s.24, FOI Act). Where the agency fails to determine an application within 21 days after receipt of the application, the agency is taken to have refused access to the documents requested for the purpose of an internal review (s.24(2) and s.34, FOI Act).

11 Where an agency fails to determine an application within 21 days after receipt of the application, it is not prevented from determining that access should be given to the documents sought (s.24(2A) FOI Act).

12 An agency is able to refuse access to a document only on specified grounds (s.25, FOI Act). One such ground is that the documents is an “exempt document” (s.25(1)(a), FOI Act).

13 An “exempt document” includes a document referred to in one or more of the provisions in Schedule 1 of the FOI Act (s.6 FOI Act). The relevant exemptions in Schedule 1 are as follows:

“ 7 Documents affecting business affairs

(1) A document is an exempt document:

…
(c) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

10 Documents subject to legal professional privilege

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.”

14 Where a document contains information concerning the business affairs of a third party to an FOI application, s.32 of the FOI Act provides that an agency is not to give access to the document unless it has taken such steps as are reasonably practicable to obtain the views of the third party.

15 Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document where it is practicably to give access to a copy of the document from which the exempt matter is deleted and the FOI applicant wishes to be given such a copy.

16 Section 55 of the FOI Act provides that the Tribunal, when determining a review application is to ensure that it does not, in its reasons for its decision or otherwise, disclose any exempt matter.

17 Section 61 of the FOI Act provides that in proceedings under the Act, the burden of establishing that the agency’s determination is justified lies on the agency.

Evidence

18 At the hearing, Dr Beverling tendered into evidence the schedule of documents filed by Council on 3 November 2003, together with the review schedule of documents, filed by Council on 27 January 2004.

19 Mr Galasso, who appeared for Mr Hynes, identified some of the documents listed in Council’s internal review schedule for which Mr Hynes did not seek access or review of Council’s determination thereto. Mr Galasso explained that the description of these documents in the internal review schedule were such that Mr Hynes was willing to concede that the exemption of legal professional privilege applied to them. The Tribunal notes that these documents were described as documents between Council and its solicitors in regard to providing instructions for legal proceedings. The Tribunal has not considered these documents any further.

20 In addition to relying on the abovementioned schedules, Council relied on two affidavits, one of which was provided to the Tribunal on a confidential basis. The non-confidential affidavit was an affidavit by Adrian Richard Walmsley, sworn on 21 January 2004. That affidavit contained a copy of an application for access to documents by Mr Hynes under s.12(6) of the Local Government Act1993. This request for access was in exactly the same terms as Mr Hynes’ subsequent FOI application. Mr Walmsley’s affidavit also enclosed a letter, dated 15 April 2003, from Council to Mr Hynes, advising him that Council’s total legal costs for proceedings regarding Lot 12 London Place, Grose Wold, was $29,255.27.

21 The confidential affidavit was sworn on 22 January 2004, and contains correspondence to the Council from relevant third parties, and a copy of a decision by the Land and Environment Court. The basis on which the latter was provided confidentially is not explained. It is difficult to understand why it was provided on a confidential basis, as there is nothing in the document to indicate that the hearing before the Land and Environment Court was a hearing closed to the public, or that the Court had made suppression orders in respect thereof. There is no issue that the subject matter of the proceedings in the Land and Environment Court was Lot 12 London Place, Grose Wold and that the parties to those proceedings were Council and Hynes Urban Planners Pty Ltd.

22 In addition to the abovementioned material, Council also provided the Tribunal, on a confidential basis, a copy of the documents for which an exemption had been claimed. The documents provided to the Tribunal appear to be the original documents held by Council or Abbot Tout. Numbers have been handwritten on the top right hand corner of the majority of these documents. In those cases where no number has been given to a document that document is an attachment to a numbered document. However, many attachments are also numbered.

23 The only evidence relied on by the Applicant was an affidavit sworn by Patrick Joseph O’Brien, on 5 February 2004. That affidavit annexed a letter from Mr Hynes’ solicitor to Council, dated 22 May 2003, and a reply to that letter from Council, dated 15 July 2003. This correspondence related to Mr Hynes’ application for access to documents under the Local Government Act 1993.

Submissions

24 Both parties provided detailed written submissions. In its submissions, the Council identified seven different categories of documents for which the legal professional privilege exemption was claimed. These categories were as follows:

a) communications between Council and its solicitors, Abbott Tout;

b) communications between Council’s solicitors and the solicitors for Hynes Urban Planners Pty Ltd who, as mentioned above, were the Applicants in the Land and Environment Court proceedings;

c) communications between Council’s solicitors and the Land and Environment Court;

d) communications between Council’s solicitors and expert witnesses (both potential and actual), together with reports, statements of evidence and drafts thereof prepared by any such witnesses;

e) communications between Council’s solicitors and another third party; and

f) internal file notes and memoranda.

25 In respect of the claim for legal professional privilege, Council relied on the decision of the Deputy President in Ciesielski v Broadway Shopping Centre Pty Ltd [2000] NSWADT 25. That decision, it contended, is support for legal professional privilege being extended beyond communications between a client and lawyer. That is, it included the following:

a) communications between a client and lawyer;

b) communications between the clients’ lawyer and an agent of the client where the communication is made for the dominant purposes of enabling or obtaining legal advice or for the purpose of obtaining information necessary for actual or contemplated litigation;

c) communications between the client’s lawyer and third parties where the communication is made for the purpose of actual or contemplated litigation; and

d) communications between the client and third parties where the communication is made for the purpose of obtaining information for the client’s lawyer in order for the client to obtain advice of actual or contemplated litigation.

26 The Council argued that the communication between Council and Abbot Tout came within (a) above and that all the other categories of communications identified by Council in its submission came within (c) and (d).

27 Council also contended that regardless of any close relationship that might exist between Mr Hynes and Hynes Urban Planners Pty Ltd, it would be inappropriate for the Tribunal to grant access to documents for which a claim for legal privilege could be made. The Council went on to contend that even if there was a close relationship, the most convenient and cost effective manner in which the Mr Hynes could obtain access to these documents was to obtain them from Hynes Urban Planners Pty Ltd or its solicitors, Phillips Fox.

28 The documents for which the business affairs exemption is claimed are primarily invoices to Council from the Council’s solicitors, and invoices from consultants engaged on Council’s behalf by its solicitors. The Council argues that this exemption applies for the following reasons:

a) the parties who raised the invoices have all stated that they object to access being given to the documents;

b) it would be unreasonable to unnecessarily and inappropriately grant access to the invoices as disclosure will prejudice the authors in that publication can be adverse to the party issuing the invoice and it is therefore unreasonable to grant access to them;

c) circumstances in which the invoices were prepared related to litigation that Mr Hynes was not a party to;

d) the current relevance of the information in the documents is questionable, particularly as no cost orders were made in the Land and Environment Court proceedings;

e) disclosure of the invoices would not serve the public interest for the purposes of the FOI Act, particularly as Mr Hynes had already been informed that the total cost incurred by the Land and Environment Court proceedings was $29,255.27; and

f) the disclosure of the documents could reasonably be expected to prejudice the future supply of such information.

29 Mr Galasso, on behalf of Mr Hynes, in his written submissions, argued that Council had adopted a very a broad brush approach, which did not accord with the legal principles of legal professional privilege, as contained in cl.10 of the Schedule 1 of the FOI Act. In support of his argument he relied on other decisions of the Tribunal, namely Johnston v Director General, Department of Housing [2003] NSWADT 125 and Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93.

30 Mr Hynes goes on to argue that ‘mere’ communication between a client and a legal advisor does not of itself attract a claim of privilege. In order to attract the privilege the communication must for the dominant purpose of legal advice. Similarly communications between a solicitor and a consultant are only privileged where they are made for the dominant purpose of providing evidence for use in legal proceedings.

31 In respect of documents that have been filed with a court for the purpose of court proceedings, Mr Hynes contends that these documents are within the public domain, and any privilege that may have previously attached to the document was waived upon the filing and service of such a document.

32 In respect of the invoices, Mr Hynes contends that these do not come within the ambit of the legal professional privilege exemption. It was argued that disclosure of these invoices could not reasonably be expected to have any adverse affect on the business or financial affairs of Council or the party who issued the invoice. It was argued that the information in the invoices did not in any way impinge on the business affairs of these parties as they were merely an invoice for the cost of services that had been provided. It was also argued that Council’s contention that the invoices could reasonably prejudice the future supply of such information to Council was an absurdity.

33 In respect of the exemption claimed for correspondence between Council’s solicitors and the solicitors for Hynes Urban Planners Pty Ltd, Mr Hynes contended that even if the documents contained privileged information, that privilege was waived when the correspondence was sent to the opposing party.

Reasons and Decision

34 The role of the Tribunal is to determine whether the decision of the Council is the correct and preferred decision, having regard to the applicable law and the relevant facts. (Section 63 of the ADT Act).

35 The decision that is being reviewed in this application is a deemed refusal by reason of ss. 24(2) and 34(6) of the FOI Act (see also s. 53(4)(a) and (5) of the FOI Act which provide that the provisions of the FOI Act apply to internal reviews under that Act and not ss. 53 and 55(1)(d) of the ADT Act). Notwithstanding this, as mentioned above, the onus in on Council to establish that the exemptions it relies on as the basis of a refusal are made out (s.61, FOI Act).

General principles relating to legal professional privilege

a) Common Law

36 The FOI Act does not define what is meant by the term “legal professional privilege” as set out in cl.10 of Schedule 1 of the FOI Act. However, legal professional privilege is part of the common law of Australia and operates to protect the confidentiality of certain communications between a client and his/her lawyer (Baker v Campbell (1983) 153 CLR 52). The principles of legal professional privilege are now well established following the High Court decision in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 and (1999) 168 ALR 123, when the Court adopted the following approach taken by Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677:

[] … a document which was produced or brought into existence with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.

37 That is, legal professional privilege applies to confidential communications involving a lawyer and a client where the dominant purpose of the communication is either:

i. to enable the legal adviser to give or the client to receive legal advice; or

ii. to be used in pending or contemplated proceedings. In such cases, confidential communications with third parties (non-agent third party) may also be privileged if they are for use in such proceedings.

38 The privilege ‘is that of, and protects the interest of, the client’ (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 570). It arises from a client and lawyer relationship but it does not exist to protect the labour of the legal adviser. The privilege attaches not only to a particular type of confidential communication but also to a particular person; namely the client. The consequences are that legal professional privilege is a rule of substantive law, which gives the client the right to make the claim of privilege or waive the privilege in respect of the confidential communication (The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49). This right can be exercised on behalf of the client through his/her legal adviser. However, a client or his legal adviser cannot exercise this right on behalf of a relevant confidential communication of another client, unless the communications are of common interest to both clients (see Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405). In this application, Council and Hynes Urban Planners Pty Ltd had opposing interests in the legal proceedings before the Land and Environment Court.

39 If the client waives the claim for privilege the client will become subject to the normal requirements of disclosure of the confidential communication. This would include disclosure for the purposes of discovery, subpoena and evidence in legal proceedings. However, where there has been a waiver of the privilege, this does not mean that the confidential communications loose the characteristics, which gave the client the right to make a claim for legal professional privilege (see Re Stanhill v Australian Securities Commission Ltd [1967] VR 749 at 750). That is, a waiver by the client does not mean that the confidential communication becomes unprivileged.

40 Accordingly, where it is claimed that the client has waived the privilege it is important to examine the circumstances in which it was waived. This is discussed more fully below.

41 In Esso (supra) Gleeson CJ, Gaudron and Gummow JJ at [35] stated that the rationale for the privilege was as follows:

… The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers.

42 In Baker v Campbell (supra) at page 114 Dean J stated that the privilege entitled a person to seek and obtain legal advice in the conduct of his/her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation without the apprehension of being prejudiced by subsequent disclosure of the communication.

43 The scope of legal professional privilege is limited, which means that not every communication between a client and his/her lawyer or non-agent third party is privileged (see Baker v Campbell (supra) at pages 86 and 122-123). In Baker v Campbell (supra) Murphy J stated that the privilege did not apply in the following circumstances:

The privilege does not attach to documents which constitute or evidence transactions (such as contracts, conveyances, declarations of trust, offers or receipts) even if they are delivered to a solicitor or counsel for advice or use in litigation …

44 In the same case at page 123 Wilson J stated:

There is no privilege for physical objects other than documents and there is no privilege for documents which are the means of carrying out, or are evidence of transactions which are of themselves the giving or receiving of advice or part of the conduct of actual or anticipated litigation.

45 As the cases demonstrate (including Ciesielski (supra); see also D Byrne and J D Heydon eds Cross on Evidence at [25210]), the privilege covers three kinds of confidential communications (“relevant confidential communications”). These are:

a. communications between the client or the client’s agents and the client’s professional legal advisers for the purpose of receiving or obtaining legal advice (see Pratt Holdings Pty Ltd v Federal Commissioner of Taxation (2004) ATC 4526; [2004] FCAFC);

b. communications between the client’s professional legal advisers and third parties if made for the purpose of pending or contemplated litigation; and

c. communications between the client or the client’s agent and third parties, if made for the purpose of obtaining information to be submitted to the client’s legal advisers for the purpose of obtaining advice upon pending or contemplated litigation.

46 The confidential communication may be oral, written (document) or some other mechanical form (e.g. video). Where the communication is in a document the document must have been brought into existence for one of the purposes set out in the paragraph above. If it is not brought into existence for one of these purposes and is subsequently provided to the lawyer for the purpose of providing legal advice or use in pending or contemplated proceedings does not mean that the document is privileged (see Chadwick v Bowman (1886) 16 QBD 561 and R v King [1983] 1 All ER 929).

47 On the other hand a confidential communication that is in the form of a document, which is brought into existence for one of the purposes set out above, the fact that the document is not subsequently used for one these purposes does not mean that a claim for legal professional privilege cannot be made (Southwark Water Co v Quick (1878) 3QBD 315).

48 In O’Sullivan v Morton [1911] VLR 70 at page 73 Hodges J stated the following:

The privilege does not depend on whether they are documents possession of which is obtained for the purpose of litigation, but upon whether they came into existence for the purpose of maintaining the case of the plaintiff or the defendant. The fact that the documents came into the possession of the solicitor for the purpose of the litigation does not make them privileged.

49 As was pointed out by Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393 at 243 an inquiry in determining whether a claim for privilege is to be upheld in respect of a document, requires an inquiry as to the purpose for which the document came into existence. That purpose must be for the purpose of communicating information for the giving of legal advice, communicating legal advice itself or communicating information to be used in pending or proposed litigation. That is, it is not the document itself that is privileged, it is the confidential communication, which attracts the privilege and is thereby protected from disclosure.

50 It is well established that the privilege applies to pleadings (including drafts) and any other Court process that are prepared by the solicitor on behalf of the client for the purpose of pending or contemplated legal proceedings. However, once these have been voluntarily filed and served, the privilege is waived (Maurice (supra), Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63).

51 The same principles apply to statements, affidavits and reports that are created for the dominant purpose of use by a client in pending or contemplated legal proceedings. However, where there is an express limited disclosure of the relevant confidential communication (i.e. for a limited purpose) this will not necessarily amount to a disclosure that constitutes a general waiver for all purposes (see Abigroup Ltd v Akins (1997) 42 NSWLR 623 and State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224; Woollahra Municipal Council v Westpac Banking Corp (1994) 33 NSWLR 529; c.f. Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125). This is discussed more fully below.

52 In Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246 Lockhart J set out the circumstances where legal professional privilege had traditionally been applicable. Included in this were:

Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal advisers of the client of communications which are themselves privileged, or containing a record of those communications, or related to information sought by the client’s legal adviser to enable him to advise the client or to conduct litigation on his behalf.

53 As mentioned above, a client can waive the privilege. Such a waiver can be express or implied (see Mann v Carnell (1999) 201 CLR 1, Goldberg v Ng (1995) 185 CLR 83 and Attorney General (NT) v Maurice (1986) 161 CLR 475). A failure to claim the privilege through inadvertence or otherwise generally amounts to an implied waiver.

54 Disclosure of privileged communications under compulsion of law does not amount to a waiver (British Coal Corp v Dennis Ryde Ltd (No 2) [1988] 3 All ER 816 and South Australia v Peat Marwick Mitchell (1995) 65 SASR 72). Nor is disclosure to an expert witness or proposed expert witness, where the disclosure is for the purpose of legal proceedings (see Dingwell v Commonwealth (1992) 107 FLR 143 at 150). The mere reference to the existence of a confidential communication that is privileged in a disclosed document, discovered document or a sworn statement in unrelated proceedings will also not generally amount to a waiver (Amploex Ltd v Perpetual Trustees Co (Canberra) Ltd and Ors (1996) 137 ALR 28 at 34; Prus-Grzybowski v Everingham (1986) 44 NTR 7 and Infields Ltd v Rosen & Son [1938] 3 All ER 591).

55 In Maurice (supra), Mason and Brennan JJ stated (at 488) that an implied waiver occurs when: “… by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege.”

56 In Mann v Carnell (supra) at [29] Gleeson CJ, Gaudron, Gummow and Callinan JJ made the following statement in respect of an implied waiver:

Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that the waiver is “imputed by operation of law”. [citation] This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

57 In Mann v Carnell the question was whether the disclosure of legal advice obtained by the Australian Capital Territory (“the Territory”) Administration for the purpose of litigation commenced by the appellant, Dr Mann, against the Territory Administration, to an independent member of the Legislative Assembly of the Territory constituted a waiver. The majority held that the disclosure of the confidential legal advice was not inconsistent with the confidentiality which the privilege served to protect as the disclosure was made on a confidential basis and for a limited purpose; namely to inform the independent member of the reasonableness of the Territory Administration’s action in settling the litigation with Dr Mann. The majority went on to state at [34] that if the legal advice had been given to the independent member for that member to provide Dr Mann with a copy, the privilege would have been waived.

58 In Goldberg v Ng (1996) 185 CLR 83, the High Court considered a case where there was a disclosure of a privileged communication to a third party, for limited and specific purposes, and upon terms that the third party would treat the information disclosed as confidential. The Court found that, in that case, there had been no express or intentional general waiver of the privilege. However, the majority found that there had been an implied or imputed waiver having regard to the principles of fairness as set out in Maurice (supra). Justices Toohey in his dissenting judgment held that as there had been a deliberately limited waiver the question of fairness or unfairness did not arise (at page 109).

59 The majority in Mann v Carnell questioned the correctness of Goldberg, in respect of waiver where there had been a disclosure to a third party, however, they did not overturn the decision (see [30]). In his dissenting judgment, McHugh J held that the Goldberg decision had been wrongly decided and at [108] he stated the following:

However, in cases like Goldberg , concerned with whether A can assert privilege against B in circumstances where A has previously disclosed the privileged material to C, I find it difficult to see why notions of “fairness” are relevant. … notions of fairness have nothing to do with whether a voluntary disclosure by A to B constitutes a waiver of privilege. Where A voluntarily discloses privileged material to a third party, both principle and the rationale of legal professional privilege require the conclusion that privilege in the material is waived and that A cannot assert that privilege against any other person.

60 As Goldberg has not been overturned, it continues to apply to those cases where there has been a disclosure to a third party for a limited purpose. In such cases, the question will be whether, on an objective assessment of the circumstances of the particular disclosure, the disclosure is such that a general waiver is to be implied (i.e. is the disclosure inconsistent with the maintenance of the confidentiality that the privilege is intended to protect).

b) Evidence Act 1995 (NSW)

61 Division 1 of Part 3.10 of the Evidence Act 1995 (NSW) also makes provision for client legal privilege. Section 118 provides that evidence is not to be adduced if, on objection by the client, the evidence would disclose “a confidential communication” that is made between a client and a lawyer or the contents of “a confidential document (whether delivered or not) prepared by the client or the lawyer” where such confidential communication or confidential document was made for the dominant purpose of the lawyer providing legal advice to the client.

62 Section 119 of the Evidence Act (1995) (NSW) contains a similar provision in respect of a confidential document that is prepared for the dominant purpose of the client being provided with “professional legal services” relating to court proceedings or an anticipated or pending court proceeding in which the client is, may be, was or might have been a party. Professional legal services would include legal advice and representation, but not accounting, executive or administrative activities (see S Odgers Uniform Evidence Law (5th Edition) at [1.3.10720]).

63 The terms “client”, “confidential communication”, “confidential document” and “lawyer” are defined in s.117 of the Evidence Act 1995 (NSW). It is not necessary to repeat these definitions other than the definition of “confidential communication” and “confidential document”. That definition is as follows:

“ confidential communication means a communication made in such circumstances that, when it was made:

(a) the person who made it; or

(b) the person for whom it was made;

was under an express or implied obligation not to disclose its contents, whether or not in the obligation arises under law;

confidential document means a document prepared in such circumstances that, when it was prepared:

(a) the person who prepared it; or

(b) the person for whom it was prepared;

was under an express or implied obligation not to disclose its contents, whether or not in the obligation arises under law;”

64 Section 122 of the Evidence Act 1995 (NSW) provides for circumstances where client legal professional privilege is lost or waived. These circumstances include are where a client has ‘knowingly and voluntarily disclosed to another the substance of the evidence’. It has been suggested that this section is limited to quantitative considerations and does not include the common law concept of “fairness” (see Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 and BT Australasia Pty Ltd v New South Wales (N0 7)(1998) 153 ALR 722).

65 In Esso (supra) the High Court held that the provisions of the Evidence Act 1995 (Cth), which are similar in terms to the abovementioned provisions in the Evidence Act 1995 (NSW), only applied where evidence was being adduced in legal proceedings and that the common law continued to apply to pre-trial procedures such as discovery.

FOI Act

66 In Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADT 12 the appellant had argued that the Tribunal at first instance had erred in law by having regard to the provisions of the Evidence Act 1995 (NSW) for the purpose of determining whether particular documents were exempt under cl.10 of Schedule 1 of the FOI Act. It was the appellant’s contention that the provisions of the Evidence Act 1995 (NSW) were inapplicable for such a determination as they only applied where the document was to be produced as evidence. At [44], the Appeal Panel stated that it did not favour an unduly mechanical approach to interpreting cl.10 of Schedule 1 of the FOI Act. It was not convinced that different outcomes would flow from an application of the tests set out in the Evidence Act 1995 (NSW), and the common law. However, it acknowledged that at some point the Tribunal may be required to resolve the issue as to which principles apply under cl.10 of Schedule 1 of the FOI Act.

67 In my opinion, having regard to the express terms of the provisions in the Evidence Act 1995 (NSW) and the decision in Esso, the applicable law under cl. 10 of Schedule 1 of the FOI Act is the common law. The right to access to documents held by government agencies under this Act is akin to the process of discovery in that a government agency to whom an FOI application is made is only required to grant access to those document that come within the terms of the FOI application, unless it is able to refuse access on one of the grounds specified in the FOI Act. This access does not in anyway give rise to the documents being tendered into evidence. However, as pointed out in Charteris there is no significant difference between the common law and the provisions of the Evidence Act 1995 (NSW) in so far as determining what is privileged. There are, however, differences I respect of waiver. These differences are of no importance to this application.

68 Implicit in Council’s submissions is a contention that it has a right to claim privilege in respect of documents, in its possession, that were created by Phillips Fox solicitors on behalf Hynes Urban Planning Pty Ltd. As mentioned in paragraphs 38 above, under the common law and under the Evidence Act 1995 (NSW), if such documents are privileged, the person entitled to claim the privilege is Hynes Urban Planning Pty Ltd and not Council. Accordingly, the question is whether cl. 10 of Schedule 1 of the FOI Act provides otherwise. In my opinion, the wording of cl. 10(1) does not indicate that Parliament intended for there to be a departure from the common law position, which is reflected in the provisions of the Evidence Act 1995 (NSW). The clause does no more than expressly preserve the right of a client to claim legal professional privilege in respect of a relevant confidential communication that is contained in a document that is held by the agency and for which access is sought under the FOI Act. In most cases the client will be the agency. However, this does not mean that a client, other than the agency, is prohibited from making a claim of privilege in respect of relevant confidential communications contained in documents held by the agency. It only means that the agency does not have the right to make the claim in respect of another third party client, as it is the third party client who has this right. Where such a claim is made by the third party client, the agency’s task is to determine whether the document in question is or is not privileged. These circumstances will be rare, as generally, a document containing such confidential communications is provided voluntarily to the agency by the third party client and this disclosure will constitute a waiver of any privilege that is attached to those communications. An example of where a third party client may claim the privilege is where disclosure to the agency of the confidential communication is for a specific and limited purpose and the FOI applicant has no relationship to that purpose.

69 In this application, Hynes Urban Planning Pty Ltd has not made a claim for privilege in respect of confidential communications (if any) contained in documents in Council’s possession and which were brought into existence by its solicitors, Phillips Fox, for the purpose of its proceedings in the Land and Environment Court. Accordingly, I find that Hynes Urban Planning Pty Ltd has waived any confidential communication that may be contained in these documents and which is privileged.

70 There may also be an argument that the documents brought into existence by Phillips Fox on behalf of Hynes Urban Planning Pty Ltd and provided to Council were provided on a confidential basis and are exempt under cl. 13 of the FOI Act. However, Council has not relied on this exemption and I have not considered it any further.

d) Summary

71 Ultimately, it is a question of fact, whether a particular communication is privileged and if privileged whether there has been a waiver of that privilege, expressly or impliedly, by the person (client) entitled to claim the privilege. As mentioned in paragraph 45 above, there are three circumstances in which a confidential communication will attract legal professional privilege. Accordingly, the Tribunal must determine in respect of each of the documents for which the Council have claimed privilege, whether the document is in fact privileged. If it is found that the document is not privileged there is no need to enquire any further as the exemption contained in cl. 10 of the FOI Act does not apply to that document. If it is found that the document is privileged, the Tribunal (as was the Council) must determine whether the privilege has been waived and whether that waiver is general or limited.

72 The documents for which Council has claimed the legal professional privilege exemption and which are listed in Council’s submissions under the various categories of communications is considered below. It is noted that it is common ground that, for the purpose of Mr Hynes’ FOI application, at all relevant times, the Council was the client of the solicitor About Tout and that the documents for which Mr Hynes sought access, and for which the Council refused access, were created during, before or after litigation between Council and Hynes Urban Planners Pty Ltd in the Land and Environment Court. From the material provided to the Tribunal it is clear that Mr Hynes was actively involved in this litigation. What his relationship is or was with Hynes Urban Planning Pty Limited was not explained.

73 In my opinion, for the reasons stated below, I agree with Mr Hynes that Council has adopted a very broad brush approach to the documents for which it has claimed privilege. I have examined the documents that have been provided by the Council on a confidential basis. As mentioned above, these documents are numbered. Unfortunately, I was not able to use the review schedule prepared by Council as the numbers and descriptions in this schedule do not strictly correspond with the numbers and descriptions of the actual documents. Accordingly, I examined the actual documents in accordance with the documents listed under each category of communication referred to in Council’s submissions. Again there were numerous errors in this list in that many documents referred to under a particular category of communication did not come within that category. These errors have made consideration of the numerous documents, the subject of this application, difficult and extremely time consuming. I have not departed from the documents as listed in Council’s submissions in my reasons for decision. As a result, there may be documents for which Council claimed an exemption and which are not included in the submissions.

Communications between Council and its solicitors

74 In its written submissions, Council has identified the following numbered documents as being privileged on the basis that they are communications between Council and its solicitors, Abbot Tout:

Documents held by Council

27, 30, 32, 33, 34, 34A, 37, 38, 40, 41, 41A, 42, 43, 43B, 44, 47, 48, 49, 50, 50A, 51, 52, 52A, 53, 54, 54A, 55, 55A, 56, 56A, 57, 60, 61, 62, 63A, 64, 66, 67, 67A, 68, 68A, 69

Documents held by Abbott Tout

5, 7, 10, 21, 22, 24, 25, 26, 27, 28, 36, 38, 42, 43, 49, 50, 52, 53, 57, 59, 63, 71, 72, 73, 74, 77, 79, 91, 92, 93, 95, 97, 104, 107, 112, 113, 119, 126, 129, 131, 132, 133, 141, 150, 170, 171, 182, 183, 184, 206, 207, 213, 221, 224, 226, 227, 229, 235, 236, 247, 248, 249, 250, 251, 252, 253, 260, 261, 262, 264, 266, 267, 271

75 At the hearing Mr Hynes had indicated that he did not dispute the Council’s determination in respect of Documents No. 27, 32, 38, 43, 43B, 44, 57, 64 held by Council and Documents No. 248 and 260 held by Abbot Tout. I have not considered these documents any further as a result of this concession.

76 There is some duplication in the documents identified by Council as coming within this category, but nothing turns on this. The documents in question consist of correspondence (letters, facsimile and emails) between Council and Abbot Tout, correspondence with non-agent third parties and the Council or Abbot Tout and invoices from Abbot Tout and non-agent third parties concerning services provided by Abbot Tout and the third party on behalf of the Council. These services all appear to relate to the litigation between Council and Hynes Urban Planners Pty Ltd. Included in the documents listed in this category of Council’s submissions was correspondence between Abbot Tout and Phillips Fox, the solicitors of Hynes Urban Planners Pty Ltd. (i.e. Documents held by Abbot Tout No 74, 77, 95, 150, 170, 213, 229B), a document from Abbot Tout to the Land and Environment Court (i.e. Document held by Abbot Tout No 141), two handwritten notes (i.e. Document held by Abbott Tout No 182 and 206) and expert reports (i.e. Document held by Abbott Tout No 247 and 248). I have assumed that these have been included in this category in error and I have considered these in the context of their respective categories below.

a) Documents that attract privilege

77 Having examined the documents I am satisfied that the following documents contain confidential communications that were made for the dominant purpose of Council obtaining or receiving legal advice, or professional legal service, from Abbot Tout in respect of the litigation between Council and Hynes Urban Planners Pty Ltd and are therefore privileged in accordance with cl.10 of Schedule 1 of the FOI Act:

Documents held by Council

30, 33, 37, 40, 42, 47 (fax cover sheet only), 48, 49, 53, 63A, 66 (cover letter only)

Documents held by Abbot Tout

5, 7, 10, 22, 24, 25, 26, 28, 36, 42, 43, 49, 50, 53, 57, 59, 63, 71, 72, 73, 79 (fax cover sheet only), 91, 92, 93, 97 (fax cover sheet only), 104, 112, 113, 119, 126, 129, 171, 183, 184, 207, 221, 224, 229, 250, 261, 262, 267 and 271.

78 There is no material before the Tribunal to suggest that privilege in these documents has been waived. Accordingly, the Council has satisfied the Tribunal that they are exempt.

79 Documents 47, 66, 79 and 97 are each made up of two documents, a fax cover sheet or a letter and an attached document. In my opinion, from the material before the Tribunal, each of the attached documents is not a relevant confidential communication. Furthermore, there is no evidence to indicate that the documents were created for the dominant purpose of Abbot Tout providing legal professional services to Council in the litigation or for the provision of legal advice. Accordingly, these documents are not exempt.

b) Tax invoices

80 In my opinion, having regard to the principles in paragraphs 43 and 45 above, the tax invoices from Abbot Tout and third parties to Council, do not of themselves attract legal professional privilege. Even if these invoices can be classified as a confidential communication, which is questionable, they were not made for the dominant purpose of obtaining or receiving legal advice or for use in the litigation between Council and Hynes Urban Planners Pty Ltd. They were made for the purpose of identifying the costs of legal services provided to Council by Abbot Tout, and services provided by third parties to Council. That is, they are similar to books of account and bills of account, which are not per se privileged (see Packer v DCT (2001) 179 ALR 462). However, they may be privileged to the extent that they contain or refer directly to a confidential communication that is privileged (see Lake Cumbeline Pty Ltd and Ors v Effem Foods Pty Ltd (1994) 126 ALR 58). For example, where an item specified on the invoice discloses the nature or substance of instructions that were given by the client to the lawyer for the pending or proposed litigation, that item will be privileged. Similarly, if the item specified on the invoice identifies the nature or substance of the advice provided by the lawyer to the client, this item would be privileged. On the other hand, where an invoice refers to a particular meeting or a date on which the person issuing the invoice attended Court or a meeting, these are not matters that would attract legal professional privilege. Once it is determined that a particular item on the invoice is privileged, the next question is whether that privilege has been waived or lost.

81 The material before the Tribunal does not enable me to determine whether one or more of the matters itemised in the various invoices are confidential communications coming within one or more of the circumstances set out in paragraph 45 above. In most cases it would appear that the matters itemised are not privileged. It is also apparent that due to its broad brush approach, Council has given no consideration to these particular items. In my opinion, Council should be given that opportunity. This would be achieved by the Tribunal remitting Council’s refusal in respect of these invoices for reconsideration pursuant to s. 65 of the FOI Act. In re-considering this issue, and if identifying a matter as being privileged, Council should at the same time determine whether it would be practical to delete the privileged matters, pursuant to s.25(4) of the FOI Act, and provide Mr Hynes with a copy of the invoices with the privileged matters deleted.

82 The relevant documents that are invoices are as follows:

Documents held by Council

34A, 41A, 50A, 52A, 54A, 55A, 56A, 62A, 67A, 68A and 69A

Documents held by Abbot Tout

52, 131, 133, 226, 227, 235, 251, 252, 253, 264, and 266

83 The invoices were all sent under the cover of a standard form of letter from Abbot Tout to Council. In my opinion, having read the cover letters, they are not privileged as they were not made for the dominant purpose of obtaining or receiving legal advice or for use in the litigation. Nor do the letters make reference to any matter, which is privileged. Accordingly, I find that the Council has failed to establish that these cover letters to the invoices are exempt under cl.10 of Schedule 1 of the FOI Act. The relevant cover letters are as follows:

Documents held by Council

34, 41, 50, 51, 52, 54, 55, 56, 57, 61, 62, 67, 68 and 69

Documents held by Abbot Tout

38, 52, 107, 132, 133, 226, 227, 235, 236, 251, 252, 253, 264 and 266 (note – the majority of the cover letters held by Abbot Tout have not been separately numbered. They have the same number as the invoice)

84 Although not an invoice, in my opinion Document No 249 (which consists of two documents) that is held by Abbott Tout falls within the category of an invoice and is not exempt under cl. 10 of Schedule 1 of the FOI Act for the same reasons stated above.

d) Documents for which a determination cannot be made

85 There are two documents listed in the Council’s submissions as communications between Council and Abbot Tout for which it is not possible to determine whether the documents are privileged or not. These are:

Document 60 held by Council; and

Document 21 held by Abbot Tout

86 Again, it would appear that Council, through its broad brush approach, has failed to consider these documents in light of the correct legal principles. The documents are letters to Planning NSW and from the contents of the letters it appears that Planning NSW was an independent party to the litigation between Council and Hynes Planning Pty Ltd. That is, it was not a non-agent third party from which Council or Abbot Tout were seeking information or expert opinion for the purpose of use or advice in or in respect to Council’s case before the Land and Environment Court. Again, in my opinion, the Council’s decision in respect of these two documents should be remitted pursuant to s.65 of the ADT Act.

Communications between Council’s solicitors and the solicitors for Hynes Urban Planners Pty Ltd

87 In my opinion, the communications between Abbot Tout and Phillips Fox, the solicitors for Hynes Urban Planning, are not per se a relevant confidential communication (see Raunio and Anor v Hills (2001) 188ALR 409 at [14]).

88 Included in this category of communications are letters from Phillips Fox to Abbot Tout and court processes prepared by Phillips Fox and sent to Abbot Tout, as well as letters from Abbott Tout to Phillips Fox and court processes prepared by Abbot Tout and sent to Phillips Fox. In general the letters do not refer to or contain the substance of a relevant confidential communication and where they do, Council only has a right to claim privilege in respect of such communications that are contained in the correspondence from Abbot Tout (see paragraph 38 above). The same applies to the court processes prepared by Abbot Tout on the Council’s behalf. In my opinion, from the material before the Tribunal, Council has waived that privilege when Abbot Tout voluntarily forwarded the material to Phillips Fox.

89 In respect of any relevant confidential communication contained in the letters from Phillips Fox or the court processes prepared by Phillips Fox, as mentioned in paragraphs 68 and 69 above, Council has no right to claim that these documents are privileged. That right rests with Hynes Urban Planning Pty Ltd, who has made no claim of privilege and it is therefore waived for the purpose of the FOI Act. The fact that Mr Hynes was not a party to the litigation to which the correspondence relates does not mean that the documents become privileged. Nor is it relevant, for the purpose of Council complying with the provisions of the FOI Act that Mr Hynes may be able to obtain copies of this correspondence from Phillips Fox. As mentioned in paragraph 70 above, these communications may have been provided in confidence. However, Council has not relied upon this exemption.

90 The following documents have been identified by Council in its submissions as being communications between Council’s solicitors and the solicitors for Hynes Urban Planners Pty Ltd:

Documents held by the Council

32A, 33A, 37A, 37B, 38A, 39A, 43A, 45 and 46

Documents held by Abbott Tout

12, 13, 17, 19, 30, 31, 61, 62, 64, 68, 70, 81, 82, 96, 101, 102, 127, 139, 143, 148, 151, 157, 160, 162, 164, 167, 169, 172, 174, 178, 193, 194, 200, 209, 212, 228, 230, 231, 232, 243, 244, 245, 246, 269, 272, 274, 276, 277, 278, 279, 280, 281 and 282

91 I have examined each of the abovementioned documents and I find that the following documents come within this category of communications and, for the reasons stated in paragraph 89 above, are not exempt under cl. 10 of Schedule 1 of the FOI Act.

Documents held by the Council

32A, 33A, 37A, 37B, 38A, 39A, 43A and 46

Documents held by Abbott Tout

12, 13, 17, 19, 30, 31, 61, 62, 64, 68, 70, 81, 82, 96, 101, 102, 148, 194, 231 and 232

92 Document No. 231 is a draft of a letter from Council’s solicitors to Phillips Fox. In my opinion, that letter is privileged, however, that privilege has been waived as the substance of that draft was disclosed to Phillips Fox when a final draft of that letter was forwarded to Phillips Fox. That letter is Document No. 232.

93 I make the same finding in respect of document 74, 77, 95, 150, 170, 213 and 229B held by Abbot Tout that are referred to in paragraph 76 above. That is, I find these documents are not exempt under cl. 10 of Schedule 1 of the FOI Act.

94 The remaining documents listed in this category of confidential communications (with two exceptions as referred to in the following paragraphs) come within one or more of the other categories of communications identified by Council and I make the following findings in respect of these:

Document 45 held by Council and Document 139, 151, 157, 162 (fax cover sheet only), 164 (fax cover sheet only), 167, 172, 174, 178, 209, 230 (fax cover sheet only), 243, 272 (fax cover sheet only) and 276 held by Abbott Tout are or contain confidential communications that are privileged and exempt under cl. 10 of Schedule 1 of the FOI Act. In my opinion, the documents attached to documents 164, 230 and 272, are not exempt as they are not a relevant confidential communication).

Document 228, 277, 278, 279, 280, 281 and 282 held by Abbot Tout are not or do not contain confidential communications that are privileged, or if privileged that privilege has been waived by Hynes Urban Planning Pty Ltd, and are not exempt under cl. 10 of Schedule 1 of the FOI Act.

Document 127 and 212, held by Abbot Tout is an invoice and a cover letter respectively. For the same reasons stated in paragraph 80 and 83 above the cover letter is not privileged and Council’s decision in respect of document 127 should be remitted under s. 65 of the ADT Act. And the decision to

Document 143, 169, 193, 200, 244, 245, and 246 held by Abbot Tout appear to be privileged. They consist of affidavits or statements and a Notice of Motion. For the reasons stated in paragraph 51 above, if the affidavits or statements were filed and served or read into evidence, then Council has waived its privilege in regard to these. The same applies to the Notice of Motion if it was filed and served as part of the legal proceedings between Council and Hynes Urban Planning Pty Ltd. As the Tribunal has no material before it on this question the decision of Council in respect of these documents should also be remitted pursuant to s. 65 of the ADT Act. Some of these documents bear a stamp stating “Land and Environment Court”. If this stamp is evidence of the filing of the particular document in that Court, then on the material before the Tribunal, I find that Council has waived any privilege that may have attached to such document. That waiver, in my opinion, is a general waiver.

Document 160 held by Abbot Tout, which is correspondence with Planning New South Wales and for the reasons stated in paragraph 86 above, the Council’s decision in respect of this document should also be remitted under s. 65 of the ADT Act.

95 In my opinion, communications between Abbot Tout and the Land and Environment Court are not relevant confidential communications and are not privileged per se. However, as mentioned above, the communications may contain material that is a relevant confidential communication and privileged. The question then is whether the privilege has been waived or lost.

96 In the case of statements of affidavits of evidence, for the reasons stated in paragraph 51 and 94 above, I find that the privilege that attached to these documents is waived if they were voluntarily filed and tendered into evidence or read onto the Court record.

97 The Council has identified the following documents as being confidential communications between Abbot Tout and the Land and Environment Court:

Documents held by Council

30A, 31A, 39 and 44A

Documents held by Abbott Tout

1, 2, 3, 30, 31, 40, 41, 47, 137, 140, 142, 144, 168, 179, 192, 198, 199, 211, 241 and 254

98 As with the other categories of confidential communications, the documents listed by Council in this category are not all communications between Abbot Tout and the Land and Environment Court. They include communication between Phillips Fox and the Land and Environment Court and communications that come within one or more of the other categories of communication identified by Council.

99 In respect of those documents listed above, which do come within this category of communication, I find that none of the abovementioned documents were provided to the Land and Environment Court under compulsion. In some cases the document is a letter to the Land and Environment Court. In other cases, the document or one of the documents attached to a numbered document bears a stamp stating “Land and Environment Court”. As mentioned in paragraph 94 above, if this stamp is evidence of the document having been filed and served voluntarily, then privilege is waived.

100 I find that document 1, 2, 3, 30, 31, 40, 47, 169 and 179 held by Abbot Tout, are communications with the Land and Environment Court. However, I also find that these documents are either not or do not contain confidential communications that are privileged, or if privileged that privilege has been waived. I make the same finding in respect of document 141 held by Abbot Tout and which is referred to in paragraph 76 above. Accordingly, these documents are not exempt under cl. 10 of Schedule 1 of the FOI Act.

101 In respect of the remaining documents listed by Council in this category of documents I make the following finding:

Document 39 and 44A (to the extent that the document contains handwriting on it) held by Council and document 137, 198 and 241 are or contain confidential communications that are privileged and exempt under cl. 10 of Schedule 1 of the FOI Act.

Document 39A held by Council and documents 41, 140, 142, 144, 168, 192, 211 and 254 held by Abbot Tout are not or do not contain confidential communications that are privileged, or if privileged that privilege has been waived, and are not exempt under cl. 10 of Schedule 1 of the FOI Act.

Document 30A and 31A held by Council and document 199 and 255 held by Abbot Tout appear to be privileged. However, on the material before the Tribunal it is not possible to ascertain whether privilege in these documents has been waived by disclosure of the contents of the documents into evidence during the proceedings between Council and Hynes Urban Planning Pty Ltd. Accordingly, the Council’s decision to refuse access to these documents should be remitted under s. 65 of the ADT Act.

102 Documents 30A, 31A and 44A in the documents held by Council concern statements of issues and statements of agreed facts. The agreed statements of fact (No. 44A) was prepared by Phillips Fox and for the reasons already stated it is not a document for which the Council is able to make a claim for privilege. However, the document has original hand written comments on it and if these were made by a legal representative of Abbot Tout the document will be privileged.

103 Document 30A appears to be a draft of document 31A. Both documents appear to be privileged. However, who is able to claim the privilege and whether the privilege has been waived, particularly in respect of document 31A, cannot be determined on the material before the Tribunal.

Communications between Council’s solicitors and expert witnesses and reports (including drafts) of such experts

104 As mentioned in paragraph 45(c) above, the general principle is that any confidential communication between lawyer of a client and an expert retained by the client that is made for the purpose of proposed or pending legal proceedings or for advice in respect of those proceedings is privileged. This includes any statement/affidavit/report or draft statement/ affidavit/ report of an expert prepared for such purposes. Where a statement/ affidavit/ report of an expert that is privileged, is voluntarily filed in court and/or served on an opposing party to the litigation, the privilege attached to the statement/affidavit is waived or lost in respect of disclosure to the opposing party (Maurice (supra) and Dingle (supra)). It may also constitute a waiver generally if the statement/affidavit/report is tendered into evidence or read onto the Court record, the privilege is waived generally. As I have already mention there is no evidence before the Tribunal as to what statements/affidavits/reports prepared by experts on behalf of the Council were filed, served or tendered into evidence in the proceedings between Council and Hynes Urban Planning Pty Ltd.

105 In its submissions, the Council has identified the following documents as being communications between Council’s solicitors and expert witnesses:

Documents held by the Council

52, 52A, 55, 55A, 62, 63A, 68 and 68A

Documents held by Abbott Tout

89, 94, 99, 111, 114, 115, 116, 117, 118, 123, 124, 125, 128, 130, 134, 136, 153, 158, 185, 186, 187, 201, 202, 208, 213, 214, 215, 217, 218, 219, 222, 223, 225, 228A, 237, 238, 239, 240, 255, 257, 258, 259, 263, 265, 268 and 270

106 The abovementioned documents held by Council are all communications concerning invoices of experts retained on behalf of Council. For the same reasons as set out in paragraph 83 above, I find that these cover letters to these invoices (i.e. Documents 52, 55, 62 and 68) are not privileged and are not exempt under cl. 10 of Schedule 1 of the FOI Act. For the same reasons as set out in paragraphs 80 and 81 above, Council’s decision to refuse access to the invoices (i.e. Documents 52A, 55A, 62A and 68A) should be remitted to Council for further consideration under s.65 of the ADT Act.

107 Document 117, 118, 134 and 259 held by Abbot Tout are also invoices and cover letters. In respect of these documents I find that document 118, 134, and 259 (cover letter only) are not exempt under cl. 10 of Schedule 1 of the FOI Act. I find that Council’s decision to refuse access to document 118 and 259 (the invoice) should be remitted to Council for further consideration under s.65 of the ADT Act. There is no document numbered 228A in the documents held by Abbot Tout. There is a document numbered 228, which is a cover letter to an invoice and for the reasons I have already stated this is not a privileged document.

108 Of the abovementioned documents listed by Council as being held by Abbot Tout and being communications between Abbot Tout and experts retained on behalf of Council, I make the following findings:

Document 89, 94, 99, 111, 114, 115, 116, 124, 125, 130, 186, 187, 214, 215, 223, 238, 239, 240, and 270 are privileged and exempt under cl. 10 of Schedule 1 of the FOI Act.

Document 255 and 258 are privileged.

109 The same applies to document 247 and 248 that is listed by Council as being a communication between Council and Abbott Tout (see paragraph 76 above). However, on the material before the Tribunal it is not possible to ascertain whether privilege in these documents has been waived by disclosure of the contents of the documents into evidence during the proceedings between Council and Hynes Urban Planning Pty Ltd. Accordingly, the Council’s decision to refuse access to these documents should be remitted under s. 65 of the ADT Act.

110 The remaining documents listed by Council as being held by Abbot Tout in this category of communications are incorrectly listed and are communications that come within one or more of the other categories of communications identified by Council. I make the following findings in respect of these documents:

Document 136, 153, 185, 208, 217, 218, 219, 222, 225, 237, 257, 263, 265 and 268 are or contain confidential communications that are privileged and exempt under cl. 10 of Schedule 1 of the FOI Act.

Document 123, 128, 158, 201, 202 and 213 are not or do not contain confidential communications that are privileged, or if privileged that privilege has been waived, and are not exempt under cl. 10 of Schedule 1 of the FOI Act.

111 The Council has identified the following documents, held by Abbott Tout, as being communications between Abbott Tout and third parties on behalf of the Council:

154, 161, 173, 176, 177, 180, 234, 248 and 256

112 From my inspection of these documents they each come within one or more of the other categories of communications identified by Council and I make the following findings in respect of them:

Document 154, 176, and 177 are or contain confidential communications that are privileged and exempt under cl. 10 of Schedule 1 of the FOI Act.

Document 161, 173, 180 and 234 are not and do not contain confidential communications that are privileged, or if privileged that privilege has been waived, and are not exempt under cl. 10 of Schedule 1 of the FOI Act.

Document 248 and 256 are or may contain confidential communications that are privileged, but on the material before the Tribunal I cannot determine if they are privileged or the privilege has been waived (e.g. copies of reports and sworn affidavits). Accordingly, the Council’s decision to refuse access to these documents should be remitted under s. 65 of the ADT Act

113 Council has identified the following documents as being file notes, held by Abbott Tout, and which it claims are exempt under cl 10 of Schedule 1 of the FOI Act:

4, 5, 6, 8, 9, 11, 15, 16, 20, 23, 29, 32, 33, 34, 35, 37, 45, 46, 54, 55, 58, 80, 83, 86, 87, 88, 90, 103, 108, 109, 110, 135, 138, 145, 152, 156, 166, 175, 181, 188, 189, 190, 195, 196, 197, 203, 204, 205, 216, 220, 275

114 Having examined these documents I find that the following are file notes that contain a relevant confidential communication and are privileged and exempt under cl. 10 of Schedule 1 of the FOI Act:

4, 6, 8, 9, 11, 15, 16, 20, 32, 33, 35, 37, 45, 46, 54, 55, 58, 83, 86, 87, 90, 103, 108, 109, 110, 189, 190, 197, 204, 205

115 As mentioned in paragraph 76 above document 182 held by Abbot Tout and incorrectly listed by Council as being a communication between Council and Abbot Tout is also a file note. I find that this file note is a relevant confidential communication and is privileged and exempt under cl. 10 of Schedule 1 of the FOI Act.

116 I find that the following documents that are file notes, are not privileged and therefore not exempt as they do not contain a relevant confidential communication (i.e. they are a record of a telephone conversation with Phillips Fox or a record of the date and time of a meeting – in one case the document is a computer web site search):

23, 29, 34, 80, 88, 196

117 The remainder of the documents listed by Council in this category of communications come within one or more of the other categories of communications identified by Council. In respect of these documents I make the following findings:

Document 5, 135, 181 (fax cover sheet only), 188, 216 and 242 are or contain confidential communications that are privileged and exempt under cl. 10 of Schedule 1 of the FOI Act.

Document 152, 156, 166, 175 and 195 are not and do not contain confidential communications that are privileged, or if privileged that privilege has been waived, and are not exempt under cl. 10 of Schedule 1 of the FOI Act.

Document 138, 145, 203, 220 and 275 are or may contain confidential communications that are privileged, but on the material before the Tribunal I cannot determine if they are privileged or the privilege has been waived (e.g. copies of sworn and filed affidavits). Accordingly the Council’s decision to refuse access to these documents should be remitted under s. 65 of the ADT Act.

118 As I have found that the invoices from Abbot Tout and consultants to Council are not privileged, it is necessary to consider whether these invoices are exempt under cl. 7 of the FOI Act.

119 It is accepted that the term “business, commercial or financial affairs”, as it appears in cl. 7 of the FOI Act, should not be narrowly construed (Re Saxon and Australian Maritime Authority (unreported, AAT, Cth, 19 June 1995 at 25)).

120 There are two limbs to cl 7(1)(c)(ii) of Schedule 1 of the FOI Act, of which only one limb needs to be satisfied. The first limb applies where it is established that the disclosure of the document in question "could reasonably be expected to have adverse effect on the business, professional, commercial or financial affairs of the third party". The second limb applies where it is established that the disclosure of the document in question “could reasonably be expected to prejudice the future supply of such information to the Government or to an agency".

121 Apart from the common requirement of “reasonableness”, each limb of cl. 7(1)(c)(ii) of the FOI Act is directed to a different issue. The first limb is concerned with there being “an unreasonable adverse effect” on the business, professional, commercial or financial affairs of the agency or the third party. This means that the agency must show that the effect of disclosure of the document in question will be adverse, that the adverse effect is unreasonable and that the adverse effect could reasonably be expected to occur (see Cossins, Annotated Freedom of Information Act New South Wales (1997), at 107.15).

122 On the other hand the second limb is concerned with the future supply of such information to the Government or agency. In this regard, the relevant question to be asked is whether the Government or its agency will be unable to obtain such information in future and not whether the particular business will provide the information in future (see Schlebaum (No.3) v Director-General, Department of Community Services & Anor [2002] NSWADT 128 at [54-57]).

123 In this case both limbs are relied on. It is noted that it is asserted that disclosure of the invoices will have an adverse effect on the business or financial affairs of the persons issuing the invoice, however there is no evidence as to the nature of that adverse effect, and that a disclosure would be unreasonable having regard to that adverse effect. In my opinion, it is not sufficient to merely make the assertion for the exemption to apply. Accordingly, having regard to the context of the invoices I am unable to find that they will have the requisite adverse effect on the respective business or financial affairs of the person issuing the invoice.

124 I also find that there is no evidence, for the purpose of the second limb of the business affairs exemption, that disclosure of the invoices would prejudice future supply of such information. In this regard, I agree with Mr Hynes’ submission that to suggest otherwise is absurd.

125 In my opinion, the matters raised by Council as reasons why access to the invoices should be refused are largely irrelevant to the considerations that are necessary when determining whether a document is exempt under cl. 7 of the FOI Act.

126 Accordingly, I find that Council has failed to establish that the invoices are exempt, pursuant to cl. 13 of Schedule 1 of the FOI Act.

Conclusions

127 For the reasons stated above, I find as follows:

a) the following documents are privileged and are exempt under cl. 10 of Schedule 1 of the FOI Act:

Documents held by Council

39, 40, 42, 44A (to the extent that the document contains handwriting on it), 45, 46, 49, 53, 63A, 64, 66 (cover letter only)

Documents held by Abbot Tout

4, 5, 6, 7 (fax cover sheet and letter of 6 February 2002), 8, 9, 11, 15, 16, 20, 22, 24, 25, 26, 28, 32, 33, 35, 36, 37, 49, 45, 46, 53, 54, 55, 57, 58, 59, 63, 71, 72, 73, 83, 86, 87, 89, 90, 91, 92, 93, 94, 99, 103, 108, 109, 110, 111, 112, 114, 115, 116, 119, 124, 125, 126, 129, 130, 135, 136, 137, 139, 151, 152, 153, 154, 156, 157, 162 (fax cover sheet only), 164 (fax cover sheet only), 166, 167, 171, 172, 174, 175, 176, 177, 178, 181 (fax cover sheet only), 182, 183, 184, 185, 186, 187, 188, 189, 190, 195, 197, 198, 204, 205, 207, 208, 209, 214, 215, 216, 217, 218, 219, 221, 222, 223, 224, 225, 229A, 230 (fax cover sheet only), 237, 238, 239, 240, 241, 242, 243, 250, 257, 261, 262, 263, 265, 267, 268, 269, 270, 271, 272 (fax cover sheet only) and 276.

the following documents are not privileged, or if privileged that privilege has been waived, and are not exempt under cl. 10 of Schedule 1 of the FOI Act

Documents held by Council

30, 33, 34, 37, 39A, 32A, 33A, 37A, 37B, 38A, 39, 41, 43, 46, 50, 51, 52, 54, 55, 56, 57, 61, 62, 67, 68 and 69

Documents held by Abbot Tout

1, 2, 3, 10, 12, 13, 17, 19, 23, 30, 31, 34, 38, 40, 41, 42, 43, 47, 50, 52, 61, 62, 64, 68, 70, 74, 77, 79, 80, 81, 82, 88, 95, 96, 101, 102, 104, 107, 113, 118, 123, 128, 132, 133, 134, 140, 141, 142, 144, 148, 150, 158, 168, 169, 170, 179, 194, 196, 161, 173, 180, 192, 201, 202, 211, 212, 213, 226, 227, 228, 229B, 231, 232, 234, 235, 236, 251, 252, 253, 254, 259 (cover letter only), 264, 266, 277, 278, 279, 280, 281 and 282.

b) Council’s decision in respect of the following documents should be remitted to the Council pursuant to section 65 of the Administrative Decisions Tribunal Act 1997 to reconsider in accordance with these reasons of decision:

Documents held by Council

30A, 31A, 34A, 41A, 50A, 52A, 54A, 55A, 56A, 62A, 67A, 68A and 69A

Documents held by Abbot Tout

52, 117, 127, 131, 133, 138, 143, 145, 160, 169, 193, 199, 200, 203, 220, 226, 227, 235, 244, 245, 246, 247, 248, 251, 252, 253, 255, 256, 258, 259 (invoice only), 264, 266 and 275

AND any other document that is not referred to in this paragraph or paragraph (a) and (b) above.

128 The Tribunal orders:

a)The deemed decision of Council to refuse Mr Hynes access to the following documents is affirmed:

Documents held by Council

39, 40, 42, 44A (to the extent that the document contains handwriting on it), 45, 46, 49, 53, 63A, 64, 66 (cover letter only)

Documents held by Abbot Tout

4, 5, 6, 7 (fax cover sheet and letter of 6 February 2002), 8, 9, 11, 15, 16, 20, 22, 24, 25, 26, 28, 32, 33, 35, 36, 37, 49, 45, 46, 53, 54, 55, 57, 58, 59, 63, 71, 72, 73, 83, 86, 87, 89, 90, 91, 92, 93, 94, 99, 103, 108, 109, 110, 111, 112, 114, 115, 116, 119, 124, 125, 126, 129, 130, 135, 136, 137, 139, 151, 152, 153, 154, 156, 157, 162 (fax cover sheet only), 164 (fax cover sheet only), 166, 167, 171, 172, 174, 175, 176, 177, 178, 181 (fax cover sheet only), 182, 183, 184, 185, 186, 187, 188, 189, 190, 195, 197, 198, 204, 205, 207, 208, 209, 214, 215, 216, 217, 218, 219, 221, 222, 223, 224, 225, 229A, 230 (fax cover sheet only), 237, 238, 239, 240, 241, 242, 243, 250, 257, 261, 262, 263, 265, 267, 268, 269, 270, 271, 272 (fax cover sheet only) and 276.

b) The deemed decision of Council to refuse Mr Hynes access to the following documents is set aside:

Documents held by Council

30, 33, 34, 37, 39A, 32A, 33A, 37A, 37B, 38A, 39, 41, 43, 46, 50, 51, 52, 54, 55, 56, 57, 61, 62, 67, 68 and 69

Documents held by Abbot Tout

1, 2, 3, 10, 12, 13, 17, 19, 23, 30, 31, 34, 38, 40, 41, 42, 43, 47, 50, 52, 61, 62, 64, 68, 70, 74, 77, 79, 80, 81, 82, 88, 95, 96, 101, 102, 104, 107, 113, 118, 123, 128, 132, 133, 134, 140, 141, 142, 144, 148, 150, 158, 168, 169, 170, 179, 194, 196, 161, 173, 180, 192, 201, 202, 211, 212, 213, 226, 227, 228, 229B, 231, 232, 234, 235, 236, 251, 252, 253, 254, 259 (cover letter only), 264, 266, 277, 278, 279, 280, 281 and 282.

c) The deemed decision of Council to refuse Mr Hynes access to the following documents is remitted to Council for reconsideration pursuant to s.65(1) of the Administrative Decisions Tribunal Act 1997:

Documents held by Council

30A, 31A, 34A, 41A, 50A, 52A, 54A, 55A, 56A, 62A, 67A, 68A and 69A

Documents held by Abbot Tout

52, 117, 127, 131, 133, 138, 143, 145, 160, 169, 193, 199, 200, 203, 220, 226, 227, 235, 244, 245, 246, 247, 248, 251, 252, 253, 255, 256, 258, 259 (invoice only), 264, 266 and 275

AND any other document that is not referred to in this paragraph or paragraph (a) and (b) above.

d) Council to provide Mr Hynes with a copy of the documents referred to in paragraph (b) above within 28 days, subject to any fees that may be payable by Mr Hynes under the FOI Act.

e) Council to advise Mr Hynes of its determination in respect of the documents referred to in (c) above within 21 days.

f) Application to be set down for further directions, in respect of the outstanding matters referred to in paragraph (e) above, on a date suitable to both parties and as arranged by Registry.