Lawrence v Port Stephens Council

[2008] NSWADT 243

CITATION:	Lawrence v Port Stephens Council [2008] NSWADT 243
DIVISION:	General Division
PARTIES:	APPLICANT Wayne James Lawrence RESPONDENT Port Stephens Council
FILE NUMBER:	073317
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	27 May 2008
DATE OF DECISION:	29 August 2008
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents - Legal professional privilege - Access to documents- business affairs
LEGISLATION CITED:	Freedom of Information Act 1989
REPRESENTATION:	APPLICANT In person RESPONDENT T Wickham, agent
ORDERS:	The decision under review is affirmed.

1 In April 2007 Mr Lawrence applied to the Port Stephens Council (“the Council”) under the Freedom of Information Act 1989 (“the FOI Act”) and requested access to:

"...copy of bill of cost received as to legal bill $14,914.00 stated in Annual Report 2005-2006 - Lawrence Waterhouse v Port Stephens Council ".

2 The background to this request was legal action in the Land & Environment Court commenced by Lawrence Waterhouse Pty Ltd in respect of a dispute concerning a development consent. In early 2006, the proceedings were discontinued. The Registrar awarded $300 in costs in favour of the Council. During the proceedings, Sparke Helmore Lawyers represented the Council. Sparke Helmore retained Rapid Process Service to serve the Council's notice of motion on Lawrence Waterhouse. Both Sparke Helmore and Rapid Process Service issued invoices to the Council. Correspondence between the Council and Mr Lawrence shows that Mr Lawrence was concerned about the amount that the Council’s external solicitors had charged the Council in legal fees.

3 An officer of the Council determined Mr Lawrence’s FOI application and found that the Council held no document that fell within the scope of the request. However, the Council officer identified nine invoices (“the invoices”) for costs in the Lawrence Waterhouse v Port Stephens Council matter. Eight of the invoices related to legal services from Sparke Helmore and one of the invoices related to process serving from Rapid Process Service.

4 The Council’s officer determined that documents were exempt documents pursuant to Schedule 1 to the FOI Act and he refused to release any of the documents.

5 Mr Lawrence applied for an internal review of the determination to refuse to release any of the documents to him. On internal review, a different officer of the Council determined that the documents were considered to be subject to legal privilege and were therefore exempt documents under clause 10 of Schedule 1 to the FOI Act. She determined not to release the documents.

6 Mr Lawrence applied to this Tribunal for an external review of the determination to refuse to release any of the documents.

7 The matter came before me for planning meetings and discussion took place between the parties in an attempt to resolve the matter. Following these discussions the Council agreed to disclose the invoices but with all references to chargeable amounts and total amounts payable (“the withheld amounts”) deleted in accordance with section 25(4) of the FOI Act. The Council relied upon…