Imielska v NSW Land and Housing Corporation

[2021] NSWCATAD 74

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Imielska v NSW Land and Housing Corporation [2021] NSWCATAD 74

Hearing dates:

12 December 2019 and 11 March 2020

Date of orders:

24 March 2021

Decision date:

24 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Senior Member

Decision:

(1) The decision of LAHC, made on 6 June 2019, is varied as follows:

(a) the redactions and withheld information, other than that which is privileged or contains personal information about an individual other than the applicant or her son, in the documents listed below is to be released to the applicant:

Schedule 4 – document number: 8, 9, 12, 30 (other than the first redaction), 39 (other than the first redaction), 43, 45, 46 (redactions in email sent 8 May 2018), 47(redactions in the email sent 8 May 2018), 48, 56, 59 (second redaction), 70, 78, 81, 83, 82, 91, 93 (attachment) 96, 97, 98 (attachment), 99, 100, 102, 105, 108, 109, 110, 112, 113, 114, 115, 116, 117, 118, 119, 124, 125, 126, 127, 128, 132, 144 and 145

Schedule 5 – document number 19, 21, 22, 23 and 25

(2) The decision of LAHC, made on 6 June 2019, is otherwise affirmed.

Catchwords:

ADMINISTRATIVE LAW – access to government information – conclusive public interest against disclosure – client legal privilege and common interest - overriding public interest against disclosure – prejudice a deliberative process of a government agency – personal information

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995 (NSW)

Freedom of Information Act 1989 (NSW) (repealed)

Government Information Public Access Act 2009 (NSW)

Housing Act 2001 (NSW)

Cases Cited:

AIN v Medical Council (NSW) [2015] NSWCATAP 241

Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098 (Archer); (2013) 306 ALR 384

AWB Limited v Honourable Terence Rhoderic Hudson

Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13

Cole [2006] FCA 571

AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234

Colefax v Department of Education and Communities [2013] NSWADT 72

Commissioner Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19

Cygnett Pty Ltd v Souris [2020] FCA 1754

Daniels Corp International Pty Limited v Australian

Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13

Competition and Consumer Commissioner [2002] HCA 49; (2002) 213 CLR 543

DSE (Holdings) PTY Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151

Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601

General Manager, WorkCover Authority of NSW v Law Society (NSW) [2006] NSWCA 84

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Inlon Pty Ltd v Celli SpA [2017] NSWSC 569

Marshall v Prescott [2013] NSWCA 152

McLennan v University of New England [2013] NSWADT 113

Media Ocean Ltd v Optus Mobile Pty Ltd (No 10) [2010] FCA 1348

Medlyn v Commissioner of Police [2020] NSWCATAD 125 at paragraph [89]

Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275

Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588

Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234

Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445

Transport for NSW v Robinson [2018] NSWCATAP 123

Watt v Department of Planning and Environment [2016] NSWCATAD 42.

Waterford v Commonwealth [1987] HCA 25, (1986)-(1987) 163 CLR 54

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Grazyna Imielska (Applicant)
NSW Land and Housing Corporation (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2019/00157413

Publication restriction:

Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material that was filed in these proceedings on a confidential basis and to those paragraphs of these reasons identified as [NOT TO BE PUBLISHED
]. That material is not to be published or released to the Applicant, without further order of the Tribunal.

REASONS FOR DECISION

1. On 20 May 2019, the applicant, Grazyna Imielska (the applicant), made an application seeking external review of the decision of the respondent, New South Wales Land and Housing Corporation (LAHC), to refuse her access to information she had sought access to, under s 41 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. In her access request the applicant sought access to the following information:

1.   Copies of all send and received emails/Letters and attachments, regarding: Dr Grazyna Imielska, Mr Michael Imielski, SHH Ltd, Pop Up Parramatta and a property at 9 Albert Street North Parramatta NSW 2151 from 02/01/2017 until now.

2.   Copy of Safety Audit and its findings regarding the property at 9 Albert Street, North Parramatta NSW 2151

3.   Copies of all post fire reports regarding the property at 9 Albert Street, North Parramatta NSW 215.

4.   Detailed information regarding future plans for the property at 9 Albert Street, North Parramatta NSW; that includes selling, redevelopment, lease etc.

3. The property at 9 Albert Street North Parramatta is owned by LAHC.

4. The background to the applicant’s application and the history of her application before the Tribunal is set out below.

5. There is no dispute that:

1. the Tribunal has jurisdiction to hear and determine the applicant’s external review application: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 30; Administrative Decisions Review Act 1997 (NSW) (ADR Act), ss 7 and 9 and GIPA Act ss 80 and 100;

2. the role of the Tribunal is to decide the correct and preferable decision having regard to the material before it and the applicable law: ADR Act, s 63(1); and

3. the onus is on LAHC to establish that its decision is justified: GIPA Act, s 105.

6. The information in issue is that which has been redacted or withheld in the documents listed in two Schedules prepared by LAHC. These are identified as Schedule 4 and Schedule 5.

7. There are 145 documents (i.e. email chains) listed on Schedule 4. However, it is only the redacted or withheld information in 114 documents that remains in dispute. There are 27 documents (again email chains) listed on Schedule 5, of which 12 remain in dispute.

8. In its submissions LAHC contends that the information in issue (i.e. the redacted or withheld information) in the documents is:

1. privileged (i.e. privileged from production in legal proceedings on the ground of client legal privilege, or common interest privilege) and thereby the conclusively presumed overriding public interest against disclosure of the information applies: GIPA Act, s 13, 14(1) and Sch 1, cl 5; or

2. information, falling within the one of the following public interest considerations against disclosure in the table to s 14(2) of the GIPA Act:

1. cl 1(d) – prejudice the supply to LAHC of confidential information; or

2. cl 1(e) - prejudice the deliberative process of LAHC. LAHC also claims this ground as an alternative to privilege; or

3. cl 1(f) – prejudice the effective exercise by LAHC of its functions; or

4. cl 3(a) - personal information about a person other that the applicant and her son; and

that the relevant public interest against disclosure, on balance, outweighs the public interest considerations in favour of disclosure.

9. In many of the 126 documents in dispute there are a number of separate redactions. Furthermore, the grounds relied on by LAHC in deciding to refuse access to each redaction within a document is not necessarily the same.

10. For the reasons that follow, I am satisfied that LAHC has established its claim that there is, on balance, an overriding public interest against the disclosure of the redacted and withheld information that is personal information about an individual other than the applicant and her son.

11. I am also satisfied that some of the redacted or withheld information for which LAHC has made a claim for legal professional privilege is privileged. However, I am not satisfied that LAHC has established this claim in regard to the redactions and withheld information in document number 21 listed in Schedule 5 and the following documents listed in Schedule 4:

Document number: 8, 9, 12, 30 (other than the first redaction), 39 (other than the first redaction), 46 (redactions in email sent 8 May 2018), 47(redactions in the email sent 8 May 2018), 48, 56, 59 (second redaction), 70, 78, 81, 82, 91, 93 (attachment), 96, 97, 98 (attachment), 99, 100, 102, 105, 108, 109, 110, 113, 114, 115, 116, 117, 118, 119, 124, 125, 126, 127, 128, 132, 144 and 145

12. Nor am I satisfied that LAHC has established its alternate grounds in regard to the redacted and withheld information in the abovementioned documents. That is, I am not satisfied that LAHC has established its claim of the s 14(2) GIPA Act public interest consideration against disclosure applied to the redacted and withheld information in issue, or alternatively that the public interest against disclosure, on balance, overrode the public interest consideration in favour of disclosure.

13. For the same reasons as above, I am also not satisfied that LAHC has established its claim of an overriding public interest against disclosure of the redacted and withheld information (other than the personal information of a person other than the applicant and her son) in the following documents:

1. Schedule 4 – document number: 43, 45, 83,112 and 145

2. Schedule 5 – document number: 19, 21, 22, 23 and 25

Background

14. LAHC is a statutory corporation, representing the Crown, created under s 6 of the Housing Act 2001 (NSW) (Housing Act). The general functions and contracting powers of the LAHC are set out in ss 7 to 13 of the Housing Act and includes the acquisition of land for present or future residential development and for public purposes.

15. As I have already noted, LAHC is the owner of the property at 9 Albert Street Parramatta (the property). It is a property used for commercial purposes.

16. Section 14 of the Housing Act provides that persons may be employed in the NSW Public Service to enable LAHC to exercise its functions. For the purpose of this application I will refer to those who have been employed in the NSW Public Service so as to enable LAHC to exercise its function as an LAHC employee.

17. In August 2012, LAHC agreed to grant a licence to Parramatta City Council (PCC) for the ‘purpose only of providing a working space for local artists to complete artworks and to paint the inside and outside of the property in various designs (‘the Artists’ Project’).’ PCC subsequently entered into various sub-licences with artists and art organisations within the local community to use specified sections (i.e. studios) of the property.

18. The applicant was a director of SHH Limited (SHH), a local arts organisation.

19. On 14 September 2012, PCC accepted SHH’s Centre for Hybrid Arts, as a program participant in the ‘Artists’ Project’ and granted it a sub-licence to use studio 1a in the property.

20. Five years later, on or about 3 October 2017, LAHC gave PCC notice that it was terminating the licence agreement in regard to the property and that it required vacant possession as it was intended to develop the site as part of its Communities Plus Program. On being given notice by LAHC, PCC gave notice to its sub-licensees, including SHH, that their sub-licences were also to be terminated. SHH was told to vacate its sub-licenced premises by 14 December 2017. By agreement the vacation date for SHH and other sub-licensees to vacate their respective studios was extended to 28 February 2018.

21. On 9 November 2017, the applicant made an application, under s 41 of the GIPA Act, seeking access to information concerning the SHH sub-licence and the property. That access request was determined, on 2 January 2018, by Catherine Coren (Ms Coren), Acting Director Legal (as she then was), of LAHC.

22. In early January 2018, the applicant wrote to the then Minister, P Goward MP, seeking an extension of SHH’s ‘lease’ of its studio. The applicant also wrote to her local member, Dr R Lee MP.

23. On or about 25 February 2018, the applicant, on behalf of SHH commenced proceedings against the LAHC and PCC in the Consumer and Commercial Division of the Tribunal. A copy of the application(s) brought by SHH against LAHC and PCC is not before the Tribunal. However, I understand from the chronology prepared by LAHC, that SHH lodged two applications, one against LAHC and the other application against PCC. In its chronology and submissions, LAHC said that the applications of SHH disputed the validity of the termination of its sub-licence (Termination Proceedings).

24. SHH and a number of other sub-licensees did not vacate their licensed premises by 28 February 2018.

25. On 14 May 2018, a fire broke out on the property. LAHC engaged Broadspectrum to take control and management of the property. SHH and the other sub-licensees were refused access to the property and remained locked out thereafter.

26. On 30 May 2018, the Tribunal dismissed the termination proceedings SHH had brought against LAHC.

27. LAHC appointed Catrina Kim (Ms Kim), Director, LAHC Assets Division as the point of contact for SHH and the other former sub-licensees in regard to any concerns they had about the property.

28. In early July 2018, the applicant’s son and other former sub-licensees who had remained in possession of their studios after 28 February 2018, made a complaint, to the Secretary of the then Department of Family and Community Services (FACS) and other senior officers of LAHC, about the manner in which fire repairs were being undertaken and requesting that a different person to Ms Kim be appointed to manage those repairs.

29. On 10 September 2018, the Tribunal dismissed the proceedings SHH had brought against PCC.

30. On 15 October 2018, the applicant, on behalf of SHH, commenced new proceedings in the Consumer and Commercial Division. Again, in its chronology LAHC said that SHH had lodged two applications, one against LAHC and the other application against PCC. In these proceedings, SHH sought relief under the Retail Leases Act 1994 (NSW) (Retail Leases Proceedings).

31. On 8 November 2018, the applicant made her second access request, which is the subject of this application. She also made an access request to PCC.

32. On 15 January 2019, the Tribunal dismissed the Retail Leases Proceedings SHH had commenced against LAHC and PCC.

33. On 18 February 2019, SHH lodged an appeal, to the Appeal Panel of the Tribunal, from the decision of the Tribunal in the Termination Proceedings and the Retail Leases Proceedings.

34. On 21 February 2019, Ms Coren, Director Legal of the respondent, determined the applicant’s second access request.

35. As she was entitled to do, on 8 April 2019, the applicant sought external review of Ms Coren’s decision by the NSW Information Commissioner. The NSW Information Commissioner completed her report on 16 May 2019. In her report the Information Commissioner recommended that LAHC conduct an internal review of specific items of information as listed on the schedule attached to the decision of Ms Coren.

36. As I have already noted, the applicant lodged this application for administrative review by the Tribunal on 20 May 2019. In that application, the applicant sought review of Ms Coren’s decision of 21 February 2019.

Proceedings before the Tribunal

37. The applicant has at all times represented herself. She is not legally trained and said she could not understand how LAHC could make a claim of privilege over so many documents.

38. In accordance with the recommendations of the Information Commissioner, on 6 June 2019, Lyndsay Brooker (Mr Brooker), Executive Director, Corporate Services of LAHC, made an internal review decision: GIPA Act, s 84. While Mr Brooker’s internal review was limited to the information specified by the Information Commissioner in her report, Mr Brooker decided to grant the applicant access to some additional information, but otherwise affirmed the decision of Ms Coren.

39. The applicant’s application first came before the Tribunal at a case conference on 25 June 2019. At this case conference the parties agreed to mediate. When no agreement was reached at the mediation, on 13 August 2019, the Tribunal made orders for the filing and serving of evidence and written submissions by each party. The application was also listed for hearing, on 12 October 2019, for half a day.

40. At the request of the respondent, on 15 October 2019, the Tribunal, vacated the hearing date and made further orders for the filing and serving of evidence and written submissions by each party. The Tribunal also set the matter down for hearing, on 12 December 2019, for 1 day.

41. On 12 December 2019, the hearing of the matter came before me. At the commencement of the hearing the applicant raised a number of concerns about being able to respond to the material filed and served by the respondent. She also expressed concern about the adequacy of searches undertaken by LAHC in regard to the information it held falling within the terms of her access request. In particular, the applicant noted that LAHC had failed to produce any relevant emails in the period between her first access application (17 November 2017) and her access request that is the subject of this application (8 November 2018). In response to these concerns, LAHC undertook to make further enquiries.

42. After hearing from the parties, I made orders adjourning the hearing to 6 February 2020 and for the filing and serving of further evidence, including an order that LAHC prepare a more detailed schedule of the documents for which access had been refused and the grounds on which they were refused and noted the following:

The parties agree that the only matters being pressed by the applicant in these proceedings are the following:

the information in the 117 documents for which the LAHC claims there is a presumed overriding public interest against disclosure as the client legal privilege applies to that information; and

whether, in regard to item 1 on the applicant’s access request, the LAHC failed to search for information falling within this item for the period 8 November 2017 and 7 March 2018.

43. The date of the adjourned hearing was subsequently changed to 11 March 2020. At the hearing on 11 March 2020, the applicant no longer pressed her claim of inadequate search.

44. After identifying the material relied on by the parties and hearing brief submissions from the parties, I reserved my decision and made orders for LAHC to file and serve an updated version of Schedule 4 (marked Ex R4 at the hearing) and further submissions on the issue of common interest privilege. An order was also made for:

1. LAHC to provide the applicant with a tabbed and paginated copy of the documents that had been provided to her which were listed in Schedule 5 (marked Ex R5 at the hearing);

2. the applicant to:

1. file and serve any submissions in reply to those filed and served by LAHC, and

2. to inform the Tribunal and LAHC whether she pressed access to the withheld documents and the redacted information in the documents listed in Schedule 5.

45. Due to the COVID-19 restrictions the time for filing and serving the abovementioned material was extended on a number of occasions.

The GIPA Act

Object and General principles of the GIPA Act

46. The objects of the GIPA Act are set out in s 3, which includes authorising and encouraging the proactive public release of government information by agencies, and providing that ‘access to government information is restricted only when there is an overriding public interest against disclosure’.

47. Section 5 of the GIPA Act creates a presumption in favour of the disclosure of government information unless there is an ‘overriding public interest against disclosure’.

Public interest test

48. Section 13 of the GIPA Act defines what is meant by the term ‘overriding public interest against disclosure’ as follows:

13   Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

Public interest considerations in favour of disclosure

49. The public interest considerations in favour of disclosure are not closed: GIPA Act, s 12 which provides:

12   Public interest considerations in favour of disclosure

(1)   There is a general public interest in favour of the disclosure of government information.

(2)   Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. The following are examples of public interest considerations in favour of disclosure of information:

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. …

Public interest considerations against disclosure

50. The public interest considerations against disclosure are closed: GIPA Act, s 14.

51. In this regard, s 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Sch 1 of that Act. Included in Sch 1 is government information that is privileged from production in legal proceedings on the ground of client legal privilege: Sch 1, cl 5, which provides as follows:

5   Legal professional privilege

(1)   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.

(2)   If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency 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 the basis of this clause.

(3)   A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

52. The only other public interest considerations against disclosure are those set out in the table to s 14(2) of the GIPA Act. That table relevantly provides:

1   Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

(e)   reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

(f)   prejudice the effective exercise by an agency of the agency’s functions, …

3   Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a)   reveal an individual’s personal information, …

Principles to be applied when determining whether there is an overriding public interest against disclosure

53. Section 15 of the GIPA Act provides:

15   Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a)   Agencies must exercise their functions so as to promote the object of this Act.

(b)   Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)   The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)   The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)   In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

Process for dealing with an access application

54. Section 53 sets out the searches an agency must undertake in providing access to government information.

55. Section 54(1) of the GIPA Act requires an agency to take such steps as are reasonably practicable to consult with a person before providing access to information relating to that person in response to an access request if it appears that:

1. the information is of a kind that requires consultation;

2. the person may reasonably be expected to have concerns about the disclosure of the information; and

3. those concerns may be relevant to a public interest consideration against disclosure.

56. Information that does require consultation is information that is personal information about a person other than the person seeking access and : GIPA Act, s 54(2)(a) and (b). In this application, LAHC has not undertaken any consultation as it had decided to refuse the applicant access to the information in issue that is personal information of a person other than the applicant and her son.

57. Section 55 makes provision for the consideration of personal factors of an application to be taken into account when dealing with an access request. That section provides as follows:

55   Consideration of personal factors of application

(1)   In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:

(a)   the applicant’s identity and relationship with any other person,

(b)   the applicant’s motives for making the access application,

(c)   any other factors particular to the applicant.

(2)   The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14. …

How an access application is to be decided and form of access

58. Section 58 of the GIPA Act sets out how an access application is to be decided, which includes deciding to provide access, or deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information: GIPA Ac, s 58(a) and (d).

59. Section 73(1) provides that an agency is not entitled to impose any conditions on the use or disclosure of information when access to the information sought is granted to the access applicant.

Administrative review by NCAT

60. As I have already noted, in review proceedings before the Tribunal, the onus is on the University to establish that its decision is justified: GIPA Act, s 105.

61. Section 107 of the GIPA Act provides that, in receiving evidence and when hearing and determining an application for review under that Act, the Tribunal is to ensure that it does not disclose any information for which there is (or a claim that there is) an overriding public interest against disclosure of that information. It is on this basis that sections of these reasons for decision are marked confidential and not disclosed to the applicant or the public. However, these sections are disclosed to the University.

Material before the Tribunal

62. In support of her application, the applicant filed and served written submissions.

63. In support of its case, at the 11 March 2020 hearing, LAHC relied on the following material:

1. three witness statement of Ms Coren dated:

1. 5 November 2019 (Ex R1);

2. 3 December 2019 (Ex R2); and

3. 11 February 2020 (Ex R3);

2. a Schedule of documents, which includes those for which LAHC has made a claim of privilege is claimed (Ex R4);

3. a Schedule of emails and letters sent to or received from the applicant and her son in the period from 2 January 2017 and 8 November 2018 (Ex R5);

4. a List of the names and positions of relevant employees of the respondent, the former Department of Family and Community Services and the PCC (Ex R6);

5. a Chronology (Ex R7); and

6. written submissions.

64. LAHC also provided the Tribunal, in confidence, with an un-redacted copy of the documents listed in Schedule 4 and Schedule 5. The documents listed in Schedule 4 were contained in two large bundles. The documents listed in Schedule 5 were contained in a smaller bundle. Each documents in each bundle was separately tabbed. The bundles also contained a copy of the documents the applicant had been granted full access to.

65. In accordance with orders made on 11 March 2020, LAHC uplifted the un-redacted copy of the documents listed in Schedule 4 and on 26 March 2020, provided:

1. the Tribunal and the applicant with an updated version of Schedule 5 together with a paginated and tabbed copy of the documents listed on that Schedule, with the information in issue being redacted in those copies;

2. the Tribunal, in confidence, with a paginated un-redacted copy of the following documents listed on Schedule 5 (as updated):

Document no: 1, 5, 10, 12, 13, 14, 17, 19, 21, 22, 23 and 25

66. On 20 and 23 April 2020, LAHC filed and served its further submissions and an updated version of Schedule 4. LAHC also provided the Tribunal, in confidence, an up-dated and un-redated copy of the documents listed on Schedule 4. I have relied on the information contained in this up-dated Schedule as identifying the information in issue and the grounds on which LAHC contends that its decision to refuse access is justified.

67. On 4 May 2020, LAHC wrote to the Tribunal, with a copy to the applicant, noting that the applicant had failed to indicate whether she pressed access to the redacted and withheld information in the documents listed in the updated Schedule 5. On this basis, LAHC contended that the applicant did not press access to that information, and argued that the only matters in issue was the redacted and withheld information in the documents listed in the updated Schedule 4.

68. On 25 May 2020, the applicant sent an email requesting ‘a revision of all documents to which access’ under the GIPA Act ‘have been partially of fully refused.’ LAHC responded objecting to this course as the applicant had failed to comply with the orders made on 11 March 2020.

69. In my opinion, as the applicant is unrepresented and LAHC bears the onus to establish that its decision is justified, it is appropriate to deal with all the information withheld as identified in the documents listed in the updated Schedule 4 and Schedule 5.

Evidence of Ms Coren

70. In her statement of 5 November 2019, Ms Coren set out the background to the applicant’s access applications, the information for which the applicant had sought access in those applications and how those access applications were dealt with (including the searches that were undertaken) and determined. Ms Coren explained that LAHC stores all of its records on a document management system that is colloquially known as ‘TRIM’. She said that different areas within LAHC have their own TRIM file groups that have a unique identifier or access permission. She said that the Legal Services branch creates TRIM files on a legal request basis, whereas the Assets Division of LAHC creates TRIM files based on the address of the property.

71. Ms Coren explained that the Legal Services branch opened a TRIM file, which she described as a ‘container’, with an identifier of LLF18/141. She said that this was the primary ‘container’ in which all documents and records relating to the licence agreement between LAHC and PCC were saved and stored. Following the termination of the licence agreement, the same ‘container’ was used to store and save all documents, correspondence and records that related to the dispute with SHH and other former sub-licensees. Ms Coren said that all documents in that TRIM file, relevant to the applicant’s access request, had been ‘assessed and, where it was in the public interest to do so, access was granted by way of the Second Notice of Decision and the Internal Review Decision’.

72. In her statement of 5 November 2019, Ms Coren indicated that the applicant’s GIPA application was forwarded to the designated mailbox for all GIPA applications, which is managed by the Practice Manager of the LAHC Legal Services branch. She said that, following the review of the Information Commissioner, ‘an internal review was conducted by Ms Virdi under my supervision.’ I am assuming that Ms Coren is referring to another matter as it was Mr Brooker, and not Ms Virdi, who signed off on the internal review decision of the applicant’s access request that is the subject of this application. Furthermore, Ms Coren having made the original decision, should not have had any involvement in determining an internal review of her decision: GIPA Act, s 84(2). As I have already stated, I am assuming Ms Coren’s remarks have been made in error and I make no adverse findings against her.

73. In her statement, at [44], Ms Coren said:

44   The following paragraphs depose to matters which may be the subject of a claim for legal professional privilege. In referring to the content of any communications or conversations, I do not waive privilege.

74. Attached to Ms Coren’s statement was a schedule of 117 documents which Ms Coren claimed to be privileged. At [47], Ms Coren said:

Based on my review of the documents, the basis of the claims for legal professional privilege, categorised broadly (so as not to waive privilege), are as follows:

a.   Correspondence between LAHC Legal Services branch and LAHC’s [the respondent’s] external solicitors seeking advice from, and giving instructions to, the external solicitors in relation to the Termination Proceedings;

b.   Correspondence between various departments within LAHC and the LAHC Legal Services branch in relation to the Termination Proceedings, and giving advice to the LAHC departments about correspondence with the Applicant in relation to the termination of the Pop Up Agreement;

c.   Correspondence and confidential briefing papers between LAHC’s Legal Services branch and other government agencies in relation to correspondence from Dr Imielska;

d.   Correspondence between staff members within LAHC’s Legal Services branch in relation to the Termination Proceedings; and

e.   Correspondence between LAHC Legal Services branch, PCC and PCC’s external lawyers in relation to the Termination Proceedings, conveyed on the basis of common interest privilege.

75. The documents to which Ms Coren referred were those listed on Schedule 4.

76. In her statement of 3 December 2019, Ms Coren said:

5   On some occasions, I had direct involvement in the termination Proceedings commenced by SHH against LAHC. I have also had direct involvement in, or overseen, LAHC’s response to the First, Second and Third GIPA Applications made by the Applicant and these current proceedings.

77. In her statement of 11 February 2020, Ms Coren expanded on the functions of LAHC, the role of the LAHC Legal Services branch and her role as the head of that branch.

78. During the relevant year (2018), LAHC’s legal services were separated into two distinct branches, the Legal Services branch, which Ms Coren headed and the Communities Plus Legal branch, which was headed by Lisa Marigliano (Ms Marigliano). Both Ms Coren and Ms Marigliano reported to Mr Brooker, the Executive Director of the Corporate Services Division of LAHC. The responsibilities of each branch differed in that the Communities Plus Legal branch only provided legal services to the Community Plus Division, which is responsible for the identification, planning and development of large-scale communities in selected social housing precincts.

79. The Legal Services branch, on the other hand, was responsible for providing legal services to the remaining Divisions of LAHC, which included the Assets, Projects, Business Development and Communities, Strategy, Office of the Deputy Secretary and Finance and Reporting Divisions.

80. While the responsibilities of each Legal branch differed, Ms Coren said they worked collaboratively on matters of common interest.

81. Ms Coren gave the following explanation of the role of the LAHC Legal Services branch:

11.   When there is a concern that an issue could become contentious, LAHC legal is ‘instructed’ by those divisions to advise and to act on LAHC’s behalf in managing the issue. LAHC Legal will also determine, with the client’s input whether or not a matter is outsourced to an external advisor.

12.   Where external lawyers are engaged, they are provided instructions via LAHC Legal, who in turn seek instructions from the internal client. LAHC Legal will, on occasion, assist the external advisors in framing the instructions being sought from LAHC by refining the issues to be raised to ensure efficiency and value for money.

82. Ms Coren explained that there were approximately 8 practising solicitors and 10 non-legal staff working in the LAHC Legal Services branch at the relevant time. She re-iterated that, in her role as the head of the LAHC Services branch, she supervised, lead and managed the lawyers in her team. Her supervisory role included:

1. being copied to most emails sent or received by the senior legal officers, or more junior officers if required;

2. participating in conferences with the divisions/sections seeking advice and or support of LAHC Legal;

3. reviewing policy considerations, the business of LAHC, identification of risks and exposures of LAHC and implementing a strategy that addresses these matters; and

4. up until 1 November 2019, approving instructions to be given to external lawyers.

83. Ms Coren reiterated that the Practice Manager of the LAHC Legal Services branch managed all GIPA access requests that were received by LAHC. In doing so, the Practice Manager allocated the request to a solicitor within the branch who had the relevant knowledge and expertise to respond to the type of information for which access was sought. Ms Coren said that she would work with that solicitor to identify appropriate divisions/ sections from which to seek the information sought.

Schedule 4 documents

84. LAHC has made a claim of legal professional privilege in regard to the redacted or withheld information in the following documents listed in Schedule 4:

Documents number - 1, 4, 6, 8, 9, 10, 11 12, 13, 14, 15, 16, 17, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 40, 44, 46, 47, 48, 49, 50, 56, 58, 59, 60, 61, 62, 63, 64, 65, 70, 72, 73, 74, 75, 78, 81, 82, 91, 96, 97, 98, 99, 100, 102, 105, 108, 109, 110, 113, 114, 115, 116, 117, 118, 119. 124, 125, 126, 127, 128, 132, 135, 136, 137, 138, 139, 143, and 144

85. LAHC’s alternative claim of a ‘presumption against disclosure’ under cl 1(e) of the table to s 14(2) of the GIPA Act is made in regard to the abovementioned deletions and withheld information in the following documents listed above:

Document number – 3, 4, 6, 8, 10, 11, 12, 16, 17, 19, 20, 30, 31, 32, 33, 34, 36, 37, 39, 40, 44, 46, 47 (attachments to email of 10 May 2018), 48, 49, 50, 56, 58, 59, 60, 61, 62, 63, 64, 91, 96, 97, 98, 99, 100, 101, 102, 103, 105, 108, 109, 113, 114, 115, 116, 117, 118, 119, 124, 125, 126, 127, 128, 132, 136, 139, 143 and 144

86. The deletions in document number 43, 45, 112 and 145 are also claimed to fall within the terms of cl 1(e) of the table to s 14(2) of the GIPA Act.

87. LAHC also makes the following claims of a ‘presumption against disclosure’ under s 14(2) in regard to the redactions and withheld information in the following documents:

1. cl 1(d) – document number 110

2. cl 1(f) – document number - 83, 93 and 98

3. cl 3(a) – document number - 22, 57, 59, 61, 62, 64, 77, 78, 81, 82, 83, 84, 85, 86, 87, 92, 93, 94, 95, 99, 100, 101, 102, 105, 106, 107, 108, 109, 110, 111, 119, 125 and 126

Schedule 5 Documents

88. LAHC has made a claim of legal professional privilege in regard to the redacted or withheld information in document 21 listed in Schedule 5.

89. A claim of a s 14(2) public interest consideration against disclosure is made in regard to the redactions and withheld information in the following documents listed on Schedule 5:

1. cl 1(e) – document number - 13, 19, 21, 23 (in part) and 22

2. cl 3(a) – document number - 1, 5, 10, 12, 14, 17 and 23 (in part)

90. I note from the material provided to the Tribunal that the applicant has been granted access to document number 17 listed on Schedule 5. Accordingly, I have not considered the information in this document any further.

Personal Information

Cl 3(a)

91. It is convenient to first deal with the redacted and withheld information that LAHC has identified as being personal information of a person other than the applicant or her son.

92. As I have noted, in Schedule 4, LAHC described this ground of refusal as being a ‘presumption against disclosure’, which is a concept that is applicable to the former Freedom of Information Act 1989 (NSW), which was repealed on the coming into force of the GIPA Act.

93. Under the GIPA Act, in the absence of there being a presumed conclusive overriding public interest consideration against disclosure, the public interest test in s 13 of the GIPA Act applies. Under this test, it is a question of where the balance lies between two competing public interests, the public interest in favour of disclosure and the public interests against disclosure. And it is only where it is found that the public interest against disclosure, on balance, outweighs the public interest in favour of disclosure that an agency can refuse access to the information sought.

94. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), at [26], the Appeal Panel of the former Administrative Decisions Review Tribunal held that an assessment of the considerations against disclosure as set out in the Table to s 14 require consideration at ‘a broader operational level’ rather than ‘considerations connected with the particulars of the instant situation’.

95. The Appeal Panel went on to say that it was appropriate to have regard to the ‘specific aspects of the instant case’ at the next stage of the inquiry when determining where the balance lies between the public interest consideration against disclosure and the public interest consideration in favour of disclosure.

96. There are two aspects to the cl 3(a) public interest consideration against disclosure. These are:

1. the information in issue is personal information; and

2. a disclosure of that information could reasonably be expected to reveal that information.

97. The term ‘personal information’ is broadly defined in cl 4 of Sch 4 of the GIPA Act as follows:

4   Personal information

(1)   In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2)   Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

(3)   Personal information does not include any of the following:

(a)   information about an individual who has been dead for more than 30 years,

(b)   information about an individual (comprising the individual’s name and non-personal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, …

98. The term ‘reveal’ is defined in cl 1 of Sch 4 of the GIPA Act to mean as follows:

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)

99. I have carefully read the redacted or withheld information for which LAHC has made a claim under cl 3(a) of s 14(2) of the GIPA Act and I am satisfied that it is personal information (name, address, telephone number and email address and other information personal to such person who is not an employee or agent of LAHC) about an individual(s), other than the applicant and her son. I am also satisfied, on the information before the Tribunal, a disclosure of this could reasonably be expect to reveal (disclose publicly) the personal information of this individual(s). The applicant, I note has not submitted otherwise. Hence, I have given considerable weight to this public interest consideration against disclosure.

100. I note the s 12(1) general public interest in favour of disclosure. However, as the information is personal information about an individual(s), I am not persuaded that there is otherwise a public interest in favour of the disclosure of this information. Again, the applicant has not submitted otherwise. It is my understanding that, of concern to the applicant was whether the redacted and withheld information was in fact personal information about person(s) other than herself, her son and SHH. As I am so satisfied, and for the reasons set out above, I also find that, on balance, the public interest consideration against disclosure overrides the public interest consideration in favour of disclosure.

101. Accordingly, I find that the decision of LAHC in regard to the relevant redactions and withheld information in the documents listed at [87(3)] and [90(2)] above is the correct and preferable decision and should be affirmed.

Legal professional Privilege

Relevant legislation and legal principles

102. Legal professional privilege is a common law and statutory right which protects confidential communications between a lawyer and client from compulsory production in the context of court and similar proceedings: see Daniels Corp International Pty Limited v Australian Competition and Consumer Commissioner [2002] HCA 49; (2002) 213 CLR 543, at [9], (per Gleeson CJ, Gaudron, Gummow and Hayne JJ). There are two aspects to legal professional privilege. These are advice and litigation privilege.

103. The statutory provisions are found in Division 1 of Part 3.10 of the Evidence Act 1995 (NSW) (Evidence Act). The Tribunal has accepted these as being the applicable law for determining whether the information in issue is privileged under cl 5 of Schedule 1 of the GIPA Act: Transport for NSW v Robinson [2018] NSWCATAP 123 at [43] and Colefax v Department of Education and Communities [2013] NSWADT 72, at [26]. The Tribunal has also noted that these provisions are effectively the same as under the common law of privilege.

The Evidence Act

104. Section 118 of the Evidence Act is concerned with legal advice privilege and provides:

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.

105. Section 119 of the Evidence Act deals with litigation privilege and provides:

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.

106. The word ‘client’ is defined in s 117(1) of the Evidence Act to include the following:

(a)   a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),

(b)   an employee or agent of a client,

(c)   an employer of a lawyer if the employer is:

(i)   the Commonwealth or a State or Territory, or

(ii)   a body established by a law of the Commonwealth or a State or Territory,

(d)   …

107. The word ‘lawyer’ is defined in s 117(1) to mean ‘an Australian lawyer, a foreign lawyer, or an employee or agent of either of them’. An Australian lawyer is a person admitted to the Australian legal profession in NSW or any other jurisdiction: Evidence Act, Dictionary and Legal Profession Uniform Law (NSW), s 6(1).

108. The term ‘confidential communication’ is defined in s 117(1) to mean:

… [a] communication made in such circumstances that, when it was made:

(a)   the person who made it, or

(b)   the person to whom it was made,

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

109. The term ‘confidential document’ is also defined in s 17(1) to mean:

… [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 the obligation arises under law.

Legal principles

Onus

110. As it is the client, who seeks the benefit of the protection of the disclosure of a ‘confidential communication’ arising from its lawyer/client relationship, it is the client (in this case LAHC) who bears the onus to establish that the communication in issue is privileged: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689.

111. Client legal professional privilege equally applies to confidential communications between government agencies and their salaried legal officers, provided that there existed, at the time of the confidential communication, a relationship of lawyer and client and the requirements of ss 118 and 119 are otherwise satisfied: Waterford v Commonwealth [1987] HCA 25 (Waterford), (1986)-(1987) 163 CLR 54, at [4], per Mason and Wilson JJ who said:

4   …[Whether], in any particular case, a relationship is such to give rise to the privilege is a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment’.

112. Hence, it is a question of fact as to whether the in-house lawyer was consulted in his or her professional capacity, or whether advice was requested outside the client-lawyer professional relationship: see and Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445, at [35] to [41].

113. The existence of legal professional privilege is not established merely by the use of a verbal formula, or by mere assertion that privilege applies to particular communications: AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234; at [44].

114. In AIN v Medical Council (NSW) [2015] NSWCATAP 241, the Appeal Panel emphasised the importance of agencies to adduce sufficient evidence to support a claim of privilege, especially with respect to communications of in-house lawyers.

115. Even where a client-lawyer professional relationship is found to exist, this does not mean that every communication between the lawyer (including the employed legal practitioner) and the client (including a government agency) is thereby privileged. It is only communications or documents that are confidential and made or prepared for the ‘dominant purpose’ of the lawyer (in his or her professional capacity) providing legal (professional) advice to the client, or for the dominant purpose of the client being provided with professional legal services relating to anticipated or pending litigation in which LAHC was a party or a potential party..

Dominant purpose

116. The word ‘dominant purpose’ is not defined in the Evidence Act. However, it has been interpreted to mean the ‘ruling, prevailing, or most influential purpose’ that predominates over other purposes and not the ‘primary purpose’ or ‘substantial purpose’ of the client or the lawyer: Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098 (Archer); (2013) 306 ALR 384, at [11].

117. As noted in Archer (supra), the purpose for which a communication (including a document) is brought into existence:

11   … [is] a question of fact that must be determined objectively, however evidence of the subjective purpose will be relevant and often decisive: Esso at [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 (Pratt) at [35].

118. In an earlier decision in AWB Limited (i.e. AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571), at [107], Young J said:

107   The authorities accept that an appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: see Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 at [35]per Finn J. I would add that where the document is immediately communicated by its author to several other persons, including the author’s legal adviser, by a circular email (which is the case here), it is also important to ask what was the dominant purpose of that email communication.’

Legal advice

119. It is accepted that the concept of legal advice is fairly broad and not confined to telling the client the law – it includes what should prudently and sensibly be done in the relevant legal context, but does not extend to advice that is purely factual, commercial, operational, or administrative in nature: see General Manager, WorkCover Authority of NSW v Law Society (NSW) [2006] NSWCA 84 (WorkCover), at [77] and DSE (Holdings) PTY Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151, at [45].

120. In WorkCover, at [94] to [95], the Court of Appeal observed:

94   … [While], as I have earlier stated, it might be accepted that legal professional privilege can attach to communications made on the operation and application of laws, proposed laws and their drafting, it is essential to ensure, particularly in the government context, that the purpose for which a document was brought into existence was one which related to legal advice as opposed to operational, administrative or policy matters. As Lord Scott emphasised in Three Rivers (No 6) (at [38]) in order for privilege to apply advice must be given in “the relevant legal context”.

95   In my view the Appeal Panel’s statement (at [39]) concerning the administration of justice was an uncontroversial reference to the rationale of legal professional appeal (assisting and enhancing the administration of justice) to which the authorities refer. The Appeal Panel accepted (at [53]) that legal advice privilege could attach to advice given in connection with proposed laws and their drafting. It was not satisfied on its examination of the disputed documents, and in the context in which they were prepared, that the documents were given in that context or for such purposes. 

121. Client legal professional privilege extends to information/advice that is of a non-legal character where that information/non-legal advice is connected to the giving of legal advice or pending or anticipated litigation. Client legal professional privilege also extends to the information in copies of unprivileged documents where the copy was brought into existence solely for use in obtaining legal advice, or for use in existing or apprehended litigation: Commissioner Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501; (1997) 141 ALR 545.

Loss of client legal privilege (waiver)

122. Section 122 of the Evidence Act sets out the circumstances where evidence can be adduced that the right of a client to make a claim privilege over a confidential communication is lost or waived.

123. Hence, the party claiming that there has been a loss or waiver of a claim for privilege bears the onus to prove that this is the case on the balance of probabilities.

124. The circumstances where privilege is lost or waived is set out in s 122(1) to (4). In summary they are where the client, in whom the right to claim privilege, has:

1. consented to the disclosure of the confidential communication, or

2. ‘acted in a manner that is inconsistent with’ that right by knowingly and voluntarily having disclosed the substance of the communication to another person, or the substance of the communication has been disclosed with the express or implied consent of the client: see also Mann v Carnell (supra), at [29].

125. Section 122(5) prescribes a number of circumstances where a client is not taken to have ‘acted in a manner inconsistent’ with the client’s right to claim privilege over the confidential communication. That section relevantly provides as follows (italics added):

(5)   A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because—

(a)   the substance of the evidence has been disclosed—

(i)   in the course of making a confidential communication or preparing a confidential document, or

…

(b)   of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or

(c)   of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

126. I have dealt with the concept of ‘common interest’ in more detail below.

Common interest

127. Consistent with the terms of s 122(5)(b) of the Evidence Act, in Inlon Pty Ltd v Celli SpA [2017] NSWSC 569, at [103], Parker J made the following observations about the concept of common interest privilege at common law:

103   … [The] term “common interest privilege” is somewhat unfortunate in that it suggests a separate category of privilege, distinct from legal professional privilege. The position is clarified by the following statement of Barrett JA in Marshall v Prescott [2013] NSWCA 152 at [57], which shows that “common interest privilege” is really an exception to circumstances where legal professional privilege would otherwise be waived:

If a document in which legal professional privilege subsists is given to someone else so that the content ceases to be confidential, the privilege is usually lost. This is because the act of giving is, in the particular circumstances, inconsistent with any continuing intention to maintain confidentiality [citation omitted]. An exception operates, however, where the person entitled to the privilege and the person to whom the content of the document is made known have such a commonality of interest in relation to the subject matter of the privilege that sharing of the content is consistent, rather than inconsistent, with an ongoing intention to preserve confidentiality and privilege.

128. Hence, the question of common interest only arises if the communication in issue is a confidential communication falling within ss 118 or 119 of the Evidence Act. In Marshall v Prescott [2013] NSWCA 152 at [63], Barrett J described this as a two-stage process. Ultimately, whether there is a common interest is a question of fact, depending on the circumstances as at the time the confidential communication was made: Inlon (supra) at [107], Marshall at [62], and Cygnett Pty Ltd v Souris [2020] FCA 1754, at [24].

129. Circumstances where a commonality of interest was established is that of an insurer and insured, a parent company and a wholly owned subsidiary, a company and a director, a liquidator and creditors and a litigant and the funder of the litigant: Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 WLR 601 at 608, Marshall (supra), Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234.

130. In Cygnett (supra), at [19], O’Callaghan J held that: ‘It is now well established in Australia that a “mere” common interest in the outcome of litigation will be sufficient to enable any party with that interest to rely on common interest privilege.’ In this regard his Honour also noted, at [20], that in Australia, it is accepted that it is not necessary for the parties with a common interest to share the same solicitor: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 279-280. In this regard his Honour noted it makes no difference:

... [whether] the same solicitor is acting for both defendants, or whether each has a separate solicitor, so long as the communications have been made in furtherance of the same interest and not in respect of adverse interests.

131. At [22] his Honour, citing Giles CJ in Media Ocean Ltd v Optus Mobile Pty Ltd (No 10) [2010] FCA 1348 at [52], noted that parties to litigation who are interested in a particular question will not ‘have a common interest for the purposes of common interest privilege if their individual interests in the question are selfish and potentially adverse to each other’, as in such circumstances there will not be the necessary identity of interest.

Privilige - Consideration

132. The documents (email chains) listed in Schedule 4 and Schedule 5 are in date order (i.e. in order of the date in which the last email in the chain was sent or received).

133. The date, author, recipients and the subject matter of each email has been disclosed to the applicant. This includes the date, author, recipients and the subject matter of each email within each chain of emails. The applicant has also been granted access to a considerable amount of the information In many emails and in some emails there are only a few redactions.

134. There is considerable duplication of emails within the various email chains and also a number of redactions in many of the email chains.

135. In the majority of cases, Ms Coren was the author or recipient (including as a ‘cc’) of the emails containing the information in issue. Jessica Sobhi (Ms Sobhi), Acting Senior Legal Officer in the Legal Service branch was also the author and recipient (including as a ‘cc’) of the emails.

136. Ms Coren and Ms Sobhi’s internal LAHC email exchanges were with:

1. Ms Marigliano and David Spasevsli (Mr Spasevsli) of the LAHC Communities Plus legal services branch – as noted in the statement of Ms Coren, Ms Marigliano heads the LAHC Communities Plus legal services branch and Mr Spasevski is a consultant solicitor within that branch; and

2. the following LAHC senior executives:

1. Mr Brooker – who I have noted to be the Executive Director, Corporate Services and to whom Ms Coren and Ms Marigliano reported;

2. Anne Skews (Ms Skews), LAHC Deputy Secretary

3. Garth Greenway (Mr Greenway), Development Director, Communities Plus Division;

4. Rodney Hodder (Mr Hodder), Director, Office of the Deputy Secretary;

5. Mychelle Curran (Ms Curran), Executive Director Strategy Division.

137. Included in the emails chains are emails between Ms Coren and Ms Marigliano with the following external lawyers and other persons:

1. LAHC lawyers at K&L Gates;

2. FACS legal branch, including Nathan Cureton (Mr Cureton), Manager Tenancy Commercial and Property and Brett Spackman (Mr Spackman), advocate. Mr Spackman represent LAHC in the termination proceedings before the Tribunal;

3. PCC lawyers at Sparke Helmore Lawyers;

4. officers of PPC, including Bindy Begg (Ms Begg), Service Manager Property Services & Space Management Asset Strategy and Property Management and Alison Lyons (Ms Lyons) in house solicitor.

138. I have carefully read the documents (email chains) that contain the information for which LAHC (the client) makes a claim of advice and/or litigation privilege.

139. I accept that Ms Coren and Ms Sobhi are lawyers within the meaning of s 117 of the Evidence Act. However, this does not mean that every communication that Ms Coren and Ms Sobhi sent to, or received from LAHC employees outside their branch are communications made or received by them in their professional capacity as lawyers. To some extent Ms Coren appears to have accepted this to be the case when she said that when matters become contentious in other Divisions of LAHC, her branch is ‘instructed’ to ‘manage the issue’.

140. I accept that Ms Marigliano, Mr Spasevsli and Mr Spackman, who represented LAHC before the Tribunal in the termination proceedings, are lawyers within the meaning of s 117 of the Evidence Act.

141. I also accept that the emails containing the information for which privilege is claimed were stored, or saved in the LAHC TRIM file group for the LAHC Legal Services branch. However, this alone does not mean that legal advice or litigation privilege attaches to the information in issue. For example, where Ms Coren (or any other legal officer in her branch) is allocated to process and determine an access request made under the GIPA Act her internal communications (or any other legal officer in her branch) in dealing with that request would not be privileged, because the dominant purpose of that communication would be for the purpose of LAHC complying with its obligations under that Act, which is administrative in nature.

142. Other than a few emails listed in Schedule 4, the emails in issue are not marked as being ‘confidential’ (e.g. document no 60 where Ms Coren said the email was confidential and subject to legal professional privilege). There are however, a number of emails where the words ‘[Sensitive:Legal]’ are added in the subject matter of the email (e.g. document 4). Nevertheless, having regard to the circumstances in which the emails were sent and received, I accept they were sent in confidence. Again, this alone does not mean that the redacted information in issue is privileged. The same applies to those emails that were said to be privileged or legally sensitive.

143. I accept that there is an onus on LAHC to establish the requisite common interest in regard to the communications between Ms Coren and PCC and its legal representatives. However, in my opinion, subject to privilege attaching to the information in issue, common interest does not arise in regard to the communications between:

1. the lawyers of the LAHC Legal Services branch and the LAHC Communities Plus Legal branch, as they are in effect all employed as in-house lawyers of LAHC. Hence, subject being satisfied that the requirements of ss 118 or 119 of the Evidence Act are met, I accept that a client lawyer relationship can exists between LAHC and the lawyers within these branches; or

2. the lawyers of the LAHC legal branches and the lawyers of FACS legal (i.e. Mr Cureton and Mr Spackman) where the communications were made for the dominant purpose of FACS legal providing LAHC with legal advice and professional legal services in regard to the termination proceedings, or the subsequent retail leases proceedings.

Internal emails

Redactions found to be privileged

144. I am satisfied that the redactions in the following internal email exchanges between Ms Coren, Ms Sobhi, Ms Marigiliano and/or Mr Spasevsli and Mr Brooker, Mr Greenway and other Executive Officers of LAHC are privileged in that they are a confidential communication:

1. made for the dominant purpose of Ms Coren, Ms Sobhi, Ms Marigiliano, and/or Mr Spasevsli providing legal advice to LAHC, or

2. made for the dominant purpose of LAHC being provided with professional legal services relating to the termination and retail leases proceedings made against it by SHH; or

3. contains information that is privileged and has not been waived.

Document number: 4, 6, 10, 11, 15, 16, 17, 19, 20, 21, 22, 25, 26, 27, 28, 29, 30 (first deletion only), 31, 32, 33, 34, 36, 39 (first deletion only), 40, 44, 46 (attachment to the email sent 9 May 2018), 47 (attachment to the email sent 10 May 2018), 49, 50, 60, 61, 62, 63, 64, 65 and 143

145. [NOT FOR PUBLICATION]

Redactions found not to be privileged

146. On the material before the Tribunal, I am not satisfied that the information redacted or withheld in the following email chains is a communication made for the dominant purpose of Ms Coren, Ms Sobhi, Ms Marigiliano and/or Mr Spasevsli providing legal advice to LAHC, or providing professional legal services to LAHC in relation to anticipated or current legal proceedings, or contains information that is legal advice which has not been waived.

Document number: 8, 12, 30, 39, 46 (redactions in email sent 8 May 2018), 47(redactions in the email sent 8 May 2018), 48, 56, 59 (second redaction), 70, 78, 81, 82, 91,93 (attachment) 96, 97, 98 (attachment), 99, 100, 102, 108, 109, 110, 118, 119, 124, 125, 126, 127, 128, 132 and 144

147. Document number 8 is an email chain between Ms Coren and Mr Brooker in regard to the arrangement LAHC has with FACS in regard to FACS providing LAHC with professional legal services in the form of representation in legal proceedings. In my view, the purpose of the communication was administrative (i.e. for information purposes only) and not for the dominant purpose of Ms Coren providing LAHC with legal advice in regard to that arrangement or for the dominant purpose of providing LAHC with professional legal services in regard to the termination proceedings.

148. As noted in the subject matter of the email chain that is document number 12, the communication concerns a briefing note to the then Minister, Minister Goward MP, about the January 2019 letter the applicant had written to the Minister and her local member, Dr Geoff Lee MP, seeking an extension of SHH’s ‘lease’. In my view the dominant purpose of the communication was administrative in nature and the redacted information does not contain the substance of any legal advice sought or obtained by LAHC.

149. The email chains that are document number 30 and 39 are email exchanges between Ms Coren and Mr Greenway, Development Director of the LAHC Community Plus Division. Document number 30 and 39 are essentially the same email chain and are about the ‘Clean Up’ of the property after the fire. In Schedule 4, document number 39 is described as a communication concerning the removal of garbage bins from the property and the disconnecting electricity.

150. I accept that the redaction in the email Ms Coren sent to Mr Greenway, on 17 April 2018, includes the substance of legal advice that had been provided to LAHC by its external lawyers and is privileged. However, I am not persuaded that the remaining redactions in the email chains in document number 30 and 39 are privileged. As I have noted, the emails concern the a clean up of the property and were clearly not made for the dominant purpose of LAHC being provided with legal advice or professional legal services in the relevant sense.

151. Leaving aside the attachments to the email chains that are document number 46 and 47, which I have found to be privileged, I am not satisfied that the redactions in the body of the email sent on 8 May 2018 in these email chains is privileged. The same redactions are contained in the documents that are document number 43 and 45 and for which privilege has not been claimed. Instead there is a claim under cl 1(e) in regard to that information. In my view, the latter is the appropriate claim in regard to this redaction as I am not satisfied that this communication was made for the dominant purpose of Ms Coren providing LAHC with legal advice or legal professional services. The email exchanges are between Ms Coren and Mr Hodder and in my opinion were administrative in nature. [NOT FOR PUBLICATION]

152. In my opinion, the redacted information in document number 48 is not privileged and even if I am wrong, on the material before the Tribunal, any privilege that is attached to this communication has been waived by LHAC. [NOT FOR PUBLICATION].

153. The withheld attachment to the email that is document number 56 is described in Schedule 4 as being a draft media holding statement and a briefing note to the Minister in relation to risks and hazards at the property following the fire. The purpose of the communication in this email chain appears to be for information only in that it is largely factual and historical as to what had occurred and what steps had been taken, or proposed to be taken to secure the property following the fire. That is, I am not persuaded that the communication in this email was for the dominant purpose of Ms Coren, or Ms Sobhi providing LAHC with legal advice or professional legal services in regard to the termination proceedings.

154. The redacted information in document number 59 and 70 are described as being a file note. The applicant has been granted access to part of the information in document 59 that relates to her son. It is the second deletion for which LAHC makes a claim for advice and litigation privilege. The email was sent by Ms Coren to Ms Sobhi on 15 May 2018, the day after the fire and in my opinion, having regard to the content of the email, the communication was made for the dominant purpose of informing Ms Sobhi of the steps taken to secure the property and not for the purpose of Ms Coren or Ms Sobhi providing LAHC with legal advice or professional legal services in regard to the pending litigation.

155. The entirety of the body of the email in document number 70 has been withheld. In Schedule 4, LAHC has described the content of the email as being a file note of a telephone conversation, that day (18 May 2018), between an officer of LAHC and the applicant and her son. In Schedule 4, LAHC goes on to assert that the purpose of the communication was for ‘providing advice to Assets on how to respond to issues raised’ by the applicant. The email does not describe this as being the purpose of the communication at the time it was made, nor has Ms Coren adduced any evidence of this being so. Hence, I am not persuaded by the explanation in the Schedule. On the contrary, on the material before the Tribunal, I am left with the impression that the communication was made for administrative purposes, namely to provide Ms Kim with a written summary of what had been said in the telephone conversation that day. [NOT FOR PUBLICATION].

156. Document number 78, 81 and 82 are three copies of essentially the same email chain in regard to an up-date of the property as at 21 May 2018. Some of the redactions contain personal information about an individual other than the applicant. Included in the email chain is an email from Ms Kim, sent on 22 May 2018, to Ms Coren and other LAHC employees. The body of that email is redacted in document number 78, but disclosed in the other documents. While I am not persuaded that this email was sent for the dominant purpose of Ms Coren providing LAHC with legal advice or legal professional services, if I am wrong, this particular communication has clearly been waived by providing the applicant with a copy of that communication in document number 81 and 82.

157. The emails that are document number 91, 93, 96, 97 and 98 were sent on 30 and 31 May 2018 and do not relate to the termination proceedings that were dismissed by the Tribunal on 30 May 2019. It is unclear on the information provided whether SHH withdrew its termination application against SHH, or whether there was a hearing on the merits of SHH’s application. On the material before the Tribunal, I was left with the impression that SHH may have withdrawn its termination application against LAHC. In any event, I am not persuaded that the communication of the redacted information in document number 91, 93, 96, 97 and 98 was made for the dominant purpose of Ms Coren providing LAHC with legal advice or professional legal services in regard to the termination proceedings. Nor, in my view, do the redactions contain the substance of legal advice provided to LAHC. In this case, as indicated in the subject matter of these emails, the purpose of the communications was the preparation of a briefing note for Minister Goward in regard to the correspondence the Minister had received from the applicant and Dr Lee MP earlier that year. That is, the communication was made for the dominant purpose of responding to a ministerial inquiry/request, which is administrative in nature.

158. The subject of the emails that are document number 99 and 100 describe the document that is attached to each email as an ‘update’ of the property as at 1 June 2018. The update appears to have been prepared that day by Ms Kim, at the request of the Office of the Deputy Secretary of LAHC, for the purpose of internal discussions the following Monday. While Ms Coren made some track changes to the update, there is no evidence that her responses were 9, made for the dominant purpose of LAHC being provided with legal advice or legal professional services for anticipated litigation. Nor is there any evidence to indicate that the updates contain a reference to legal advice that had previously been given to LAHC by Ms Coren in her professional capacity as a lawyer.

159. I make a similar finding in regard to the redacted and withheld information in document number 102, 108, 109, 110, 118, 119, 124, 125, 126, 127, 128, 132 and 145 for which LAHC has made a claim of legal advice privilege. Again, I am not persuaded that these redactions are a communication that was made for the dominant purpose of Ms Coren providing LAHC with legal advice in regard to pending or anticipated litigation, or that they contained the substance of legal advice that had been provided to LAHC previously.

160. Document number 108, 109, 110, 118 and 119 relate to earlier communications between Ms Coren and K&L Gates that are at document [number 105, and 113 to 117. For the reasons set out below, I am not satisfied that these communications between Ms Coren and K&L Gates are privileged, and for the same reasons, I make a similar finding in regard to the redactions that are in document number 108, 109, 110, 118 and 119.

161. Document number 102 is an email sent by Ms Kim to Ms Coren on 17 July 2018. The subject matter of the email is ‘Post fire repairs’ and includes an email from the applicant to Broadspectrum the contractor LAHC engaged to inspect and supervise access to the property after the 14 May fire. In my view, the redacted information in the email exchange between Broadspectrum to Ms Kim does not contain the substance of legal advice Ms Coren had provided to LAHC in her professional capacity. On the contrary, on the information before the Tribunal, it would appear that Ms Coren had overall administrative responsibility in co-ordinating, on behalf of LAHC, its responses to questions raised by the former sub-licensees in regard to their respective studios from which they were locked out after the fire. That is, her communications were made in this capacity and not in her professional capacity as a legal adviser.

147. I make a similar finding in regard to the redactions (other than those which relate to the personal information of an individual other than the applicant and her son) in the email chains that are document number 124, 125, 126, 127 and 128, which relates to post fire repairs and the complaint made by the applicant and her son and other former sub-licensees after the fire.

148. Document number 132 is a further update of the briefing note, for the LAHC Deputy Secretary, in order for her to respond to the applicant’s post fire complaint and document number 144 are email exchanges in relation to the applicant’s email of 18 October 2018 seeking confirmation of a number of matters and copies of requested documents. For the reasons I have already given, I am not persuaded that these email exchanges were made for the dominant purpose of Ms Coren providing LAHC with legal advice or legal professional services. Nor do they contain the substance of legal advice given by Ms Coren. I note that LAHC has not made a claim of privilege in regard to the redacted information in document number 145, which includes the same email that is in document number 144,

Email exchanges with Mr Spackman of FACS

164. I am satisfied that the redactions in the following internal and external email exchanges between Ms Coren and/or Ms Sobhi with Mr Spackman are privileged in that they are a confidential communication made for the dominant purpose of LAHC being provided with professional legal services relating to the termination and retail leases proceedings laid against it by SHH:

Document number: 21, 24, 26, 27, 28, 29, 35, 37, 58, 72, 73, 74, 75, 136, 137 and 139

Email exchanges with LAHC external lawyers

165. The email exchanges between LAHC and its external lawyers are at document number 1, 105, 113, 114, 115, 116 and 117.

166. I am satisfied that the redacted information in document number 1 is privileged. The email was sent, on 16 January 2018, by Ms Marigliano to K&L Gates Lawyers together with a number of emails attached to it. I am satisfied that the email is confidential and was made for the dominant purpose of K&L Gates providing legal advice to LAHC. I am also satisfied that the redacted information in the chain of emails to Ms Marigliano’s email are privileged, as they form part of the instructions Ms Marigliano provided to K&L Gates.

167. The remaining email exchanges were sent in mid July 2018, which was after the dismissal of the termination proceedings SHH had brought against LAHC and prior to the retail leases proceedings having commenced.

168. Document number 105 is an email Ms Coren sent to LAHC’s external lawyers K&L Gates. In Schedule 4, LAHC described the email as being ‘instructions to advise LAHC in relation to termination of Pop Up Agreements’ (i.e. the sub-licences) and a claim of legal advice privilege has been made in regard to the redacted information in the body of the email and the withheld attachments to that email. I note, in its Schedule, LAHC states that access to the attachments were withheld because the applicant had already been provided a copy of some of these in response to her first access application: GIPA Act s 59. The Schedule does not explain which attachments had been previously provided to the applicant and in what circumstances they were provided. Nevertheless, I am assuming that the applicant has not in fact been given access to the email (and its attachments) that is document 105.

169. As I have already noted, at the time this communication was made there was no pending litigation against LAHC. Nor has Ms Coren given any evidence that at the time she made this communication (11 July 2018) that further litigation was anticipated. Having carefully read the email that is document number 105 and the email exchanges that followed between Ms Coren and K&L Gates and then Ms Coren and Mr Brooker in regard to the same subject matter, I am not persuaded that, at the time Ms Coren made her communication that is document number 105, the dominant purpose of the communication was for K&L Gates to provide LAHC with legal advice in regard to the complaints that had been made by the applicant’s son and the other remaining former sub-licensees.

170. On the contrary, for the reasons that follow, in my view, the communication made by Ms Coren that is document number 105 was made for the dominant purpose of LAHC being provided with advice of an administrative nature and not legal advice.

171. [NOT FOR PUBLICATION].

172. [NOT FOR PUBLICATION]

173. [NOT FOR PUBLICATION].

174. The email chains that are document number 113 to 117 relate to the same subject matter as document number 105 and on the basis of my findings in regard to that document I make a similar finding in regard the redactions in documents number 113 to 117 for which LAHC has made a claim for legal advice privilege. That is, I am not persuaded that they are privileged.

Email exchanges between LAHC and PCC

175. The email exchanges between Ms Coren and PCC are document number 9, 13, 14, 135, 138

176. Document 9 is an email sent, sent on 1 March 2018, by Ms Begg, PCC’s Service Manager Property Services, to Ms Marigliano and copied to Mr Greenway, Mr Spasevski, Ms Coren and Ms Lyons, PCC’s in-house solicitor. LAHC asserts that the deleted information is privileged on the grounds of common interest privilege. It was noted that the email was sent approximately four days after SHH had commenced the termination Proceedings against LAHC and PCC.

177. As I have noted above, a ground of common interest privilege does not exist. However, a disclosure of confidential information for which a client has a right to claim litigation privilege to a ‘person with whom the client has a common interest’ in regard to the litigation or proposed litigation will not constitute a waiver of the confidential information. In this case, the question is whether the communication of Ms Begg was privileged in that it contained the substance of legal advice that had been provided to PPC, or whether it was a communication made for the dominant purpose of PCC being provided with professional legal services in pending litigation.

178. I accept that her communication is confidential, but I am not satisfied that the deleted information in the email of Ms Begg contained the substance of legal advice that had been provided to PPC, or that the communication was made for the dominant purpose of PCC being provided with professional legal services in regard to the proceedings commenced against it by SHH. There is no evidence that Ms Begg is legally qualified, or that she is she employed by PCC as an in-house lawyer. Hence, I do not find that her email of 1 March 2018 is privileged and on this basis the question of common interest does not arise.

179. However, I am satisfied that the 7 March 2018 email of Nick Christiansen, a partner of the external legal firm, Sparke Helmore, acting on behalf of PCC, is privileged in that it contains the instruction given to him by PCC in regard to the termination proceedings SHH had commenced against PCC in the Tribunal: see document number 13. I am also satisfied that a disclosure of this information in Nick Christiansen email to Ms Coren did not amount to a waiver of that privilege, as I am satisfied, based on the content of the communication that, at the time the communication was made, there was a common interest between LAHC and PCC in regard to the termination proceedings. I make a similar finding in regard to Ms Coren’s email in response: see document number 14. That there was a common interest is reflected in the internal emails that are at document number 15, 16 and 17.

180. I make a similar finding in regard to the email exchanges at document number 135 and 138 that were sent on 26 October 2018, by Jo Yap (also a Sparke Helmore solicitor) and Nick Christiansen to Ms Coren and Brett Spackman. On this occasion, I am satisfied that the redacted information in these emails was made by Jo Yap and Nick Christiansen for the dominant purpose of providing PCC with professional legal services in relation to the retail leases application SHH had commenced against it and that a disclosure of this information to Ms Coren and Mr Spackman did not amount to a waiver, because, at the time the communication was made, there was a common interest between PPC and LAHC in regard to the retail leases proceedings commenced by SHH.

Schedule 5 – document number 21

181. Document number 21 is an internal email sent on 28 May 2018 by Ms Sobhi to Ms Kim, with a copy to Ms Coren. In Schedule 5, LAHC has described this email as being correspondence providing a draft response to the applicant and her son about the property. LAHC went on to assert that the information was privileged because the creator of the email was a senior legal officer who had written the email for the dominant purpose of advising the recipient about the wording and form of the response the recipient was to send to the applicant and her son. In my opinion, this communication is no different to that contained in document number 105 and those email exchanges that followed. Accordingly, I am not persuaded that the email that is at document 21 on Schedule 5 is privileged.

Summary of findings in regard to privilege

182. For the reasons set out above:

1. I have found that the redactions and withheld information in the following documents is privileged:

Schedule 4 – document number: 1, 4, 6, 10, 11, 13, 14, 15, 16, 17, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30 (first redaction only), 31, 32, 33, 34, 35, 36, 37, 39 (first redaction only), 40, 44, 46 (attachment to the email sent 9 May 2018), 47 (attachment to the email sent 10 May 2018), 49, 50, 58, 60, 61, 62, 63, 64, 65, 72, 73, 74, 75, 135, 136,137, 138, 139 and 143

2. I am not satisfied that LAHC has established that the following redactions and withheld information is privileged”

Schedule 4 – document number: 8, 9, 12, 30 (other than the first redaction), 39 (other than the first redaction), 46 (redactions in email sent 8 May 2018), 47(redactions in the email sent 8 May 2018), 48, 56, 59 (second redaction), 70, 78, 81, 82, 91, 96, 97, 98, 99, 100, 102, 105, 108, 109, 110, 113, 114, 115, 116, 117, 118, 119, 124, 125, 126, 127, 128, 132 and 144

Schedule 5 – document number 21

Prejudice the supply of confidential information, the deliberative processes or effective exercise of the functions of LAHC

183. Again, the public interest considerations against disclosure in cl 1(d), (e) and (f) are not a ‘presumption against disclosure’ as described by LAHC in Schedule 4.

184. The approach to be taken in regard to these public interest considerations against disclosure is that described by the Appeal Panel in Camilleri (supra). They also require the Tribunal to engage in a relatively abstract analysis: Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), at [58].

185. Common to each of the public interest considerations against disclosure in cl 1(d), (e) and (h) is ‘prejudice’. The GIPA Act does not define what this word means, but it has been accepted that it means - ‘to cause detriment or disadvantage’ or ‘impede or derogate from’: McLennan v University of New England [2013] NSWADT 113.

Cl 1 (d), (e) and (f)

Cl 1(d) prejudice the supply of confidential information – document number 110

186. LAHC contends that a disclosure of the redacted information in document 110 could reasonably be expected to prejudice the supply to LAHC of confidential information that facilitates the effective exercise of its functions. The email is an internal email between two employees of the same LAHC Division that contains the same information that is in the email chain that is document number 108. The subject matter of the email chain is an up-date on the property as at 12 July 2018. The email chain contains personal information of an individual other than the applicant and her son, which has been redacted. However it is the remaining redaction, or part thereof, for which LAHC makes it claim under cl 1(d) of the table to s 14(2) of the GIPA Act.

187. Under the former FOI Act, cl 13(b)(ii), a ground on which an agency could refuse access to a document included a document that contained matter the disclosure of which would disclose information obtained in confidence, and ‘could reasonably be expected to prejudice the future supply of such information’ to an agency (i.e. an exempt document). In Mullett, at [58], where the Appeal Panel made the following remarks about the Tribunal’s approach to the application of this exemption:

58   In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act’s in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:

`The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'

188. The Tribunal has accepted that a similar approach is applicable to the cl 1(d) public interest consideration against disclosure in of the GIPA Act: Medlyn v Commissioner of Police [2020] NSWCATAD 125, at [89].

189. As I have already noted, I accept that the redacted information in document number 110 was made in confidence. However, I doubt that the information in issue is of the kind to which this public interest consideration against disclosure is addressed because it is information contained in an internal communication made between LAHC employees in the ordinary course of their employment and in the exercise of LAHC’s functions as set out in the Housing Act.

190. Even if I am wrong, in the absence of any evidence of prejudice by LAHC, I am not satisfied that a disclosure of this information could reasonably be expected to prejudice the supply of this kind of information in the future. Hence, I am not satisfied that this public interest consideration against disclosure has been established.

Cl 1(e) prejudice the deliberative process of LAHC

191. There are two elements to the cl 1(e) public interest consideration against disclosure. These are: (a) the information must reveal a deliberation or consultation, or an opinion, advice, or recommendation given, and (b) disclosing the information can reasonably be expected to prejudice the deliberative processes of the agency: Watt v Department of Planning and Environment [2016] NSWCATAD 42.

192. A ‘deliberative process’ of an agency is its thinking processes: Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at [66]. In Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588, at [58] to [61], the Administrative Appeals Tribunal (Cth) (AAT) made the following observations in regard to ‘the deliberative process’ as found in s 36(1) of the Freedom of Information Act (Cth) as follows:

58   As a matter of ordinary English the expression “deliberative processes” appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. “Deliberation” means “The action of deliberating: careful consideration with a view to decision”: see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes — the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. …

59 It by no means follows, therefore, that every document on a departmental file will fall into this category. … Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36(1)(a) applies.

60   It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure — …

193. In this public interest consideration against disclosure, it is deliberative process of the agency more generally which must be disadvantaged or impaired by the disclosure of the information in issue.

194. In light of my findings, at [182(2)] above, in regard to LAHC’s claim of privilege, I am required to consider its alternative claim under cl 1(e) of the table to s 14(2) of the GIPA Act. LAHC has also made a claim under this clause for the redactions and withheld information in document number 43, 45, 112 and 145 in Schedule 4 and document number 13, 19, 22 and 25 in Schedule 5.

195. LAHC has not put on any evidence that the disclosure of the information in issue and for which it has made a claim of a public interest consideration against disclosure under this clause. However, in his 23 April 2020 written submissions, the solicitor for LAHC asserted the following:

63   … [Inherent] in the preparation of these briefing notes and ministerial documents is a deliberation and consultation process. If these processes were exposed to public scrutiny, it would prejudice the open and frank deliberation of these, and related issues. This is because briefing notes and ministerial documents are a means of communicating between government departments and Ministers or Senior Executives of a department so that the Ministers and Senior Executives can make informed decisions, and give the government department instructions, in relation to decisions affecting the administration of the government department's functions.

64   The preparation of draft briefing notes and ministerial documents are, of themselves, a deliberation and consultative process because information and advice is being gathered and, on that basis, should be subject to a presumption against disclosure. After the deliberations and consultative processes have come to an end and the briefing note or ministerial documents have been finalise, the information contained in the earlier drafts is not necessarily included in the final version.

196. Other than the redactions in document number 13 listed in Schedule 5, I accept that the redacted or withheld information in the documents referred to above, at [194], if disclosed could reveal a deliberation or consultation, or an opinion, advice or recommendation about the property, the fire that occurred at the property and the former sub-licensees (including the applicant and her son) of PPC who had remained in possession of their respective studios after February 2018.

197. I am not persuaded that the redaction in document number 13 listed in Schedule 5 contains information, the disclosure of which could reasonably reveal a deliberation etc. The document is an invoice from Romteck Grid Pty Ltd to LAHC about a sale it made to LAHC in regard to the property. The redacted information in the invoice is the amount due to be paid by LAHC and the bank details of Romteck. In my view the information is commercial in nature and concerns the business interest of Romteck and arguably a disclosure of this information could reasonably be expected to give rise to a public interest consideration against disclosure falling within cl 4 of the table to s 14(2) of the GIPA Act. If this is correct, it would require consultation with Romteck, under s 54 of the GIPA Act, before a decision is made to release that information.

196. As there is no evidence of LAHC having consulted Romteck, the applicant having otherwise been granted access to the information in this invoice, and the applicant failing to expressly seeking access to the redacted information or information of this kind I have considered it no further, other than to assume that there is an overriding public interest against the disclosure of this information.

197. I am otherwise not satisfied that, if disclosed, the redacted and withheld information in the abovementioned documents (see at [94] above) could reasonably be expected to prejudice a deliberative process of LAHC. I make this finding on the grounds that LAHC has not put on any evidence as to how a disclosure of this information would prejudice the deliberative processes of LAHC generally and the fact that the deliberative process to which the redacted and withheld information relates appears to have been finalised some time ago. That is, in the absence of any evidence I do not accept the assertion of LAHC’s solicitor that a disclosure of the information in issue could reasonably be expected to prejudice the open and frank deliberation of LAHC in regard to the issues raised in the briefing notes and the communications generally.

198. Hence, I find that LAHC has failed to establish this ground of public interest against disclosure.

199. However, in the event I am wrong, I would not place considerable weight on this public interest against disclosure, because the deliberative process to which the information relates has been finalised.

200. On the other hand I would place considerable weight on the public interest considerations in favour of disclosure, these being

1. the general public interest in favour of disclosure:

2. the information in issue is personal information of the applicant and her son to whom the information is to be disclosed;

3. the disclosure of the information could reasonably be expected to:

1. promote openness, accountability and responsibility in government decision-making; and

2. inform the public about the operation of LAHC and its practices in dealing with publicly owned commercial property.

203. Accordingly, other than in respect of the invoice that is part of document number 13, I am not satisfied that LAHC has established that the public interest consideration against disclosure of the redacted and withheld information in the documents referred to at paragraph [194] above. In the event I am wrong in this finding, I would nevertheless find that LAHC has failed to establish that on balance, the overriding public interest against disclosure outweighs the public interest consideration in favour of disclosure.

Cl 1 (f) - prejudice the effective exercise by an agency of the agency’s functions

204. LAHC contends that a disclosure of the redacted information in document number 83, 93 (attachments) and 98 (attachment) could reasonably be expected to prejudice the effective exercise by LAHC of its functions.

205. Document 83 is an email exchange between Ms Coren and Ms Begg of PCC. The other documents are internal email exchanges between Ms Coren and Ms Sobhi, sent on 30 and 31 May 2018

206. Other than to assert, against the entry of these documents in Schedule 4, LAHC has not identified which of its functions would be prejudiced by the disclosure of the redacted information (other than the personal information of an individual other than the applicant and her son).

207. Accordingly, I am not satisfied that LAHC has established this public interest consideration against disclosure applies to the redacted and withheld information in document number 83, 93 and 98.

Conclusion and Orders

208. For the reasons set out above, I find that the decision of LAHC in regard to the following redactions and withheld information is the correct and preferable decision:

1. the deletions and withheld information for which LAHC has made a claim of privilege in the following documents listed in Schedule 4:

Document number: 1, 4, 6, 10, 11, 13, 14, 15, 16, 17, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30 (first redaction only), 31, 32, 33, 34, 35, 36, 37, 39 (first redaction only), 40, 44, 46 (attachment to the email sent 9 May 2018), 47 (attachment to the email sent 10 May 2018), 49, 50, 58, 60, 61, 62, 63, 64, 65, 72, 73, 74, 75, 135, 136,137, 138, 139 and 143;

2. the deletions and withheld information for which LAHC has made a claim of an overriding public interest against disclosure of information that is personal information about an individual, other than the applicant and her son, in the following documents:

Schedule 4 - document number: 21, 22, 59, 61, 62, 64, 77, 78, 81, 82, 83, 84, 85, 86, 87, 92, 93, 94, 95, 99, 100, 101, 102, 105, 106, 107, 108, 109, 110, 111, 118, 119, 121, 123, 125, 126, and 128

Schedule 5 - document number: 1, 5, 10, 12, 14, 17 and 23

209. For the reasons set out above, other than that which is personal information of an individual, other than the applicant and her son, I find that the LAHC has failed to establish that its decision, or its decision in the alternative to its claim of privileges is justified:

Schedule 4 – document number: 8, 9, 12, 30 (other than the first redaction), 39 (other than the first redaction), 43, 45, 46 (redactions in email sent 8 May 2018), 47(redactions in the email sent 8 May 2018), 48, 56, 59 (second redaction), 70, 78, 81, 83, 82, 91, 93 (attachment) 96, 97, 98 (attachment), 99, 100, 112, 102, 105, 108, 109, 110, 112, 113, 114, 115, 116, 117, 118, 119, 124, 125, 126, 127, 128, 132, 144 and 145

Schedule 5 – document number 19, 21, 22, 23 and 25

210. On the basis of my findings I find that:

1. the decision of LAHC in regard to the redacted and withheld information which I have found to be privileged or to be information of an individual, other than the applicant and her son, is the correct and preferred decision and should be affirmed (see at [208(1) & (2)] above); and

2. the decision of LAHC in regard to the redacted and withheld information for which it made a claim of an overriding public interest against disclosure is not the correct and preferred decision (see at [209]).

211. On the basis of my findings I make the following orders:

1. The decision of LAHC, made on 6 June 2019, is varied as follows:

1. the redactions and withheld information, other than that which is privileged or contains personal information about an individual other than the applicant or her son, in the documents listed below is to be released to the applicant:

Schedule 4 – document number: 8, 9, 12, 30 (other than the first redaction), 39 (other than the first redaction), 43, 45, 46 (redactions in email sent 8 May 2018), 47(redactions in the email sent 8 May 2018), 48, 56, 59 (second redaction), 70, 78, 81, 83, 82, 91, 93 (attachment) 96, 97, 98 (attachment), 99, 100, 102, 105, 108, 109, 110, 112, 113, 114, 115, 116, 117, 118, 119, 124, 125, 126, 127, 128, 132, 144 and 145

Schedule 5 – document number 19, 21, 22, 23 and 25

2. The decision of LAHC, made on 6 June 2019, is otherwise affirmed.

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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: 24 March 2021