Lensing v Snowy Valleys Council

[2024] NSWCATAD 75

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lensing v Snowy Valleys Council [2024] NSWCATAD 75

Hearing dates:

10 August 2023, 14 September 2023

Date of orders:

21 March 2024

Decision date:

21 March 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

(1)   The Respondent’s decision of 17 May 2023 is affirmed.

(2)   The Applicant’s application for review is otherwise dismissed.

Catchwords:

ADMINISTRATIVE LAW — administrative review — government information — allegations of improper conduct — personal information not sought — irrelevant information not sought — legal professional privilege — waiver of privilege — conclusive presumption against disclosure

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Government Information (Public Access) Regulation 2018 (NSW)

State Records Act 1998 (NSW)

Cases Cited:

Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group plc (No 2) [2013] FCA 1098

AWB Ltd v Cole (2006) 152 FCR 382

Balabel v Air India [1988] 1 Ch 317

Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501

Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86

Commissioner of Taxation (Cth) v Pratt Holdings (2005) 225 ALR 266

Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278

Crewdson v Central Sydney AHS [2002] NSWCA 345

Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

GA v The University of Sydney [2009] NSWADT 230

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Kennedy v Wallace (2004) 142 FCR 185

Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853

Leech v Sydney Water Corporation [2010] NSWADT 298

Lensing v Snowy Valley Council [2022] NSWLEC 1486

Neary v State Rail Authority [1999] NSWADT 107

Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357

Public Service Assn v Premier’s Department [2002] NSWADT 277

Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163

Seven Network Ltd v News Ltd [2005] FCA 142

Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25

Texts Cited:

None

Category:

Principal judgment

Parties:

Chad Lensing (Applicant)
Snowy Valleys Council (Respondent)

Representation:

Counsel:
M Bennett (Respondent)

Solicitors:
Applicant (self-represented)
Marsdens Lawyers (Respondent)

File Number(s):

2023/00107076

Publication restriction:

None

REASONS FOR DECISION

1. Chad Lensing (the Applicant) owns a property at Lot 12 Bombowlee Ave, Bombowlee (DP 1252902) (the Property), adjacent to the Tumut River. In 2020 the Applicant made a development application, 2020/0228 (the DA), to the Snowy Valleys Council (the Respondent) for approval to develop a two-storey dwelling and separate shed on the Property. The Respondent refused the DA on 27 April 2021 and the Land and Environment Court (LEC) upheld the Respondent’s decision in Lensing v Snowy Valley Council [2022] NSWLEC 1486.

2. Shortly after the LEC decision, the Applicant made an application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to the Respondent for access to the following information:

All DA information, communications and records submitted and processed for New Dwellings and Ancillary buildings for the following properties:

•   Lot 12 Bombowlee Ave, Bombowlee (DP 1252902)

•   Lot 6 or No 85 Bombowlee Ave, Bombowlee (DP 818414)

•   Lot 11 or No 97 Bombowlee Ave, Bombowlee (DP 1229907)

•   Lot 1 & No 63 Orrs Lane, Bombowlee (DP 799962 & 750991)

3. On 10 November 2022 the Respondent decided under the relevant sections of the GIPA Act (emphasis in original):

I have decided, under the following sections of the GIPA Act to:

- 58(1)(a), to provide access to some of the information

- 58(1)(c), that some of the requested information is already available to the applicant but details of where to access the information will be provided, and

- 58(1)(d), to refuse to provide access to some of the information requested due to an overriding public interest against disclosure.

4. The Applicant requested an internal review of that decision on 14 November 2022, specifically in relation to the documents withheld. That was completed by the Respondent on 5 December 2022. The Notice of Decision on the Internal Review decided to refuse to provide access to the information requested on the basis of s 58(1)(d) of the GIPA Act, finding that there was an overriding public interest against disclosure of the information because:

Section 14 Table, item 3(c) states that information that may prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings is a substantial reason for not disclosing all or part of a document. Therefore, documents pertaining to discussions between Council staff and Council’s legal representatives have been withheld. This section provides a strong reason for not disclosing records containing such information.

5. The Applicant sought external review of the internal review decision with the Information and Privacy Commission NSW (IPC). On 16 January 2023 the Respondent wrote to the IPC and informed them that additional documents had been identified which had not been included in the original Notice of Decision, and that the Respondent would be issuing a Supplementary Notice of Decision. The Supplementary Notice of Decision was issued by the Respondent on 17 January 2023 in relation to the additional information identified, which comprised internal emails between Council staff members and email between the Applicant and Council staff members which were found by the Applicant on the hard copy file pertaining to his DA. That additional information was released to the Applicant, subject to redactions made for personal information.

6. On 24 February 2023 the IPC issued its decision, noting that the Respondent had failed to consider the public interest considerations in favour of disclosure of the information sought by the Applicant, including that Development Application information could be defined as “open access information” pursuant to cl 3, Schedule 1 of the Government Information (Public Access) Regulation 2018 (NSW). The IPC also noted that the Respondent had not sufficiently addressed how the withheld information could reasonably be expected to prejudice current or future court proceedings, or how the information reveals matters prepared for current or future proceedings. The IPC stated:

The onus is on the Agency… The Agency’s reasons appear to apply clause 3 (c) as an exemption or an outright reason for withholding the information without properly explaining how its relevant and applicable and balancing it with considerations in favour of disclosure in the application of the public interest.

7. The IPC also found that the Respondent had failed to address whether the personal information withheld as a result of the Supplementary Decision would be revealed by releasing it, and that the Respondent had failed to provide the Applicant with adequate reasons for its decision.

8. The Respondent then undertook extensive additional searches for information and engaged in communications with the Applicant about the scope of the information he sought. The Respondent identified 5600 records, of which ultimately 768 documents were identified as falling within the scope of the access application, which the Applicant pressed access to, and which the Respondent withheld in whole or in part. A Notice of Decision was then issued by the Respondent on 17 May 2023 which attached a schedule identifying each of the 768 documents and the reasons for being withheld with reference to the table to s 14 of the GIPA Act. It is the Tribunal’s task to review that decision and determine whether the withheld information is appropriately withheld pursuant to the GIPA Act.

9. The Respondent relied on an affidavit of Rachael Peacock dated 26 June 2023 which exhibited correspondence relevant to the proceedings and each of the documents produced to the Applicant pursuant to his access application, which were withheld in part. The Respondent provided the Tribunal on a confidential basis with 13 folders containing the unredacted withheld information, for the purpose of the Tribunal’s assessment as to whether that information was appropriately withheld under the GIPA Act. A further affidavit of Rachael Peacock dated 9 August 2023 was provided to the Tribunal, addressing searches and inquiries made by her and others for the files of Councillor John Larter. The Respondent provided the Tribunal with two sets of detailed written submissions and made oral submissions at hearing.

10. In addition to the Application for Review, the Applicant provided the Tribunal with copies of communications and other correspondence with the Respondent, a spreadsheet of his responses to the Respondent’s schedule of withheld documents, a “Statement of Facts and Background Submissions”, submissions in response to Rachael Peacock’s affidavit, a folder of “exhibit reference files”, and two sets of additional written submissions. The Applicant made oral submissions at hearing.

Legal Principles

11. The Tribunal’s jurisdiction to conduct this review derives from s 100 of the GIPA Act read with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Section 100(1) of the GIPA Act gives a person who is aggrieved by a “reviewable decision” of an agency the right to seek administrative review of that decision by the Tribunal. The term “reviewable decision” is defined in s 80 of the GIPA Act.

12. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier’s Department [2002] NSWADT 277 at [57], [59].

13. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3).

14. The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. The objects of the GIPA Act are set out in s 3(1):

3   Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a)   authorising and encouraging the proactive public release of government information by agencies, and

(b)   giving members of the public an enforceable right to access government information, and

(c)   providing that access to government information is restricted only when there is an overriding public interest against disclosure.

…

15. “Government information" is given a wide meaning under s 4 of the GIPA Act being "information contained in a record held by an agency".

16. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. In accordance with s 9(1) of the GIPA Act, the Applicant has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.

17. Section 105 of the GIPA Act provides that the onus is on the Respondent agency to justify its decision.

Public Interest Considerations

18. The general public interest considerations in favour of access to government information set out in s 12 of the GIPA Act mean that the balance is always weighted in favour of disclosure. In addition to the general public interest, the following examples are identified:

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.

19. Section 13 of the GIPA Act provides -

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.

20. Section 14 of the GIPA Act deals with public interest considerations against disclosure. In these proceedings the remainder of the withheld information, which is not claimed to be subject to privilege, is claimed by the Respondent to fall within the public interest considerations against disclosure described in the Table to s 14(2) of the GIPA Act. That information is subject to the balancing exercise required by s 13 of the GIPA Act, with reference to the principles expressed at s 15 of the GIPA Act. Relevantly, the Respondent relied on the following public interest considerations against disclosure:

1. (3)(c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings;

2. (1)(f) prejudice the effective exercise by an agency of the agency's functions;

21. The evidence of the Respondent must satisfy the threshold for each of those clauses, being that it "could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)". In this regard, the test to be applied is an objective one, approached from the viewpoint of a reasonable decision-maker: Neary v State Rail Authority [1999] NSWADT 107 at [35]. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163, followed in Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 (Barrett) at [40], Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) at [40] to [41], Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

22. The meaning of the word prejudice is to “cause detriment or disadvantage’ or to ‘impede or derogate from”: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].

23. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities: Barrett, at [42].

Privilege

24. A large proportion of the information withheld by the Respondent is claimed to be subject to legal professional privilege (LPP). Clause 5 of Schedule 1 to the GIPA Act states:

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.

25. The term “client legal privilege” is found in the Evidence Act 1995 (NSW) (the Evidence Act) and is used interchangeably with the term “legal professional privilege”. The Evidence Act recognises two classes of legal professional privilege – “advice privilege” and “litigation privilege”. Section 118 of the Evidence Act 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.

26. Section 119 of the Evidence Act 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.

27. Section 117 of the Evidence Act contains definitions of ‘client’ and ‘lawyer’ and relevantly provides as follows:

117 Definitions

(1) In this Division:

client includes 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,

…

lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them.

…

28. The word ‘dominant purpose’ is not defined in the Evidence Act. However, it has been held 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 plc (No 2) [2013] FCA 1098 at [11].

29. The important question to be asked is “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) 136 FCR 357, 366 at [35]. This is to be determined as a question of fact: Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 at [10], [14].

Submissions

30. The onus is on the Respondent to demonstrate that the documents it has withheld from the Applicant are validly withheld pursuant to the GIPA Act. The Respondent provided the Tribunal with a table listing each of the 768 records it had withheld and the reasons for doing so.

30. The Respondent submitted that the information was withheld on the following bases:

1. The Applicant has a history of litigation against the Respondent, in relation to the Property, and has made serious allegations against the Respondent, justifying a concern by the Respondent in disclosing material to the Applicant: s 55 of the Act;

2. The Applicant’s relationship with the other property owners on which he seeks information, being a neighbour who is dissatisfied with his outcome of the DA: s 55 of the Act;

3. Releasing the information would prejudice the Respondent’s conduct of the development application (DA 2022/0181) for the Property: items 1(f), (g) & (h) of the Table in s 14 of the Act;

4. Releasing the information (being Council officer email addresses) would likely increase their contacts from the public unnecessarily: items 1(f) & (g) of the Table in s 14 of the Act;

5. Releasing personal information of third parties: items 3(a) & (b) of the Table in s 14 of the Act;

6. Releasing information that was prepared for the purposes of Lensing v Snowy Valley Council [2022] NSWLEC 1486: item 3(c) of the Table in s 14 of the Act;

7. Releasing information that is the subject of privilege: cl 5 of Schedule 1 to the Act; and

8. Releasing information that was commercial in confidence or would prejudice a third party’s business interests: item 3(d) of the Table in s 14 of the Act.

32. The Respondent also admitted that there were some records which had previously been in existence but which it no longer had access to as they had been deleted. The circumstance of those deletions was explained in email correspondence exhibited to Ms Peacock’s affidavit evidence, that it had occurred as a result of a former employee, Mr Ralph Tambascco, deleting records on his departure from his employment. In response to enquiries made by Ms Peacock in relation to the Applicant’s access application, the former employee wrote on 22 May 2023:

Hi Rachel

Prior to me concluding my Contract work at Council, I went through my emails and deleted documents from my Deleted Items and my Sent Items. I do this as I like to leave my email boxes empty. There is no other reason why apart from the fact that I don’t like clutter as I consider myself to be an organised person. I’m sorry if I did not send all my emails for registration as I’m sure I may have missed a few. There is no other reason why I deleted my emails apart from wanting to leave the relevant sections empty. Also I do print a hard copy of important emails and put them on the relevant files, whether they be DA files, CC files, CDC files, Section 68 files, etc.

Hope this explanation helps. Regards.

33. The Respondent also provided evidence of its inquiries with Councillor John Larter, who stated on 7 August 2023:

Re: Mr Lensing

Dear Jessica

I can advise after checking my email correspondence that I have not initiated any emails or correspondence with anyone on this matter.

34. The Respondent submitted that the evidence demonstrated it had undertaken adequate and reasonable searches for the information sought by the Applicant, and that in relation to the information withheld, it had given proper reasons for the withholding or redacting of documents.

35. The Respondent submitted that the Applicant was seeking to utilise these proceedings for a collateral purpose, to review the conduct of the Respondent and its staff, and that this should be rejected by the Tribunal in the same way as had been rejected in Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95 (Choi) where the Appeal Panel determined at [62]:

To attempt to use proceedings under the GIPA Act to review the conduct of government agencies and their officers or staff, amounts to the use of those proceedings for a collateral purpose. Attempts to use review proceedings in the Tribunal for a collateral purpose are to be rejected: Crewdson v Central Sydney AHS [2002] NSWCA 345; GA v The University of Sydney [2009] NSWADT 230.

Applicant’s submissions

36. The Applicant’s submissions focussed on his concerns regarding the conduct of the Respondent in dealing with his GIPA application, as a basis for his submission that the Respondent had or was acting improperly, in both dealing with his DA and in responding to the access application. He complained that the Respondent had issued 4 decisions in relation to his access application, which he submitted:

… is an attempt to obstruct and conceal information which would cause embarrassment and reveal maladministration, improper and fraudulent conduct within the council Planning, Development and Governance teams…

37. The Applicant’s basis for seeking the information subject of the access application was stated by him to be:

We wish to understand how the development application process was applied for our property with regard to the approved developments on the adjacent lots which were approved after ours and had minimal supporting information regarding flooding, social impact and no public notification attached.

We believe Snowy Valleys Council has applied a double standard and wish to try and understand how this has occurred.

38. Additionally, the Applicant raised concerns about the deletion of records:

We have noted recently through Councils (sic) solicitor that Mr Ralph Tambascco who was the Principle Planning and Assessment Officer of our Development application has deleted all of the email records associated for our development application which we understand are not recoverable.

We have significant concerns as to why this would occur.

We also advise that the files from Councillor John Larter who was a supporting Councillor of our development have also not been provided even though we have copies of emails sent to him.

(We can only assume that these files have been deleted also)

39. The Applicant’s submissions with respect to the reasons given by the Respondent for withholding information, including those records which were identified as subject to LPP, were:

If Snowy Valleys Council has acted in a professional and diligent manner with regard to the development applications and GIPA application in question they should and would have nothing to fear and should welcome the chance to engage with us and be supportive and transparent with their interactions. This is clearly not the case.

Releasing the remaining GIPA information as requested will promote accountability, open discussion and ensure effective oversight of council processes and allow both parties to move forward.

With due respect to Snowy valleys council there appears to be numerous referd (sic) which has resulted in a significant loss of confidence and trust from ourselves and the community to which it serves.

40. In closing written submissions the Applicant focussed on the deletion of records admitted to by the Respondent, stating that:

This would appear to be very unusual and the only conclusion that can be deduced from this behaviour that it was to cover up failings in Council process.

In effect Council and it (sic) officers have acted unprofessionally with significant maladministration and in turn have negated our privilege to obtain these evidence documents which would have been produced under the GIPA Act.

41. In relation to the documents withheld on the basis of LPP, the Applicant submitted:

I understand there is legal privilege to a number of documents but would request this be waived because this is our own personal development application and Council should have no concerns releasing this information. Any information contained within these unreleased documents and files would be based on facts, technical analysis and reference to NSW legislation for our development application and its associated assessment.

…

Snowy Valleys Council should waive any legal or professional privilege and release all of the remaining documents held to maintain transparency of their process and procedure

Consideration

42. The Applicant’s submissions raise two issues in relation to this access application. First, whether the Respondent has engaged in any improper conduct in relation to the deletion of records held. Second, whether the information withheld by the Respondent in response to the Applicant’s access information is properly withheld. I will deal with each in turn.

Improper conduct and collateral purpose

43. The Applicant submitted that the fact that the Respondent had identified additional documents each time it had conducted additional searches, had issued four decisions in relation to the access application, and had admitted that there had existed records which it no longer held due to their deletion, demonstrated improper conduct.

44. It is not the Tribunal’s role in these proceedings to determine whether or not the Respondent has engaged in any improper conduct, either in dealing with the Applicant’s access application or in dealing with the Applicant in relation to his DA. There has been no application made for referral under ss 111 or 112 of the GIPA Act. Even if there was, I decline to make either of these referrals.

45. Section 111 of the GIPA Act permits, but does not require, the Tribunal to refer any matter to the Information Commissioner “that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.” This section is directed to the conduct of “a particular agency or by agencies generally”. Section 112 permits the Tribunal to bring a matter to the attention of the relevant Minister if “an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act.” That section is directed to conduct of “an officer of an agency”.

46. There is no evidence upon which the Tribunal could make a finding that any of the issues identified by the Applicant with respect to his access application the subject of these proceedings is indicative of a systemic issue. There is no evidence that any individual officer of the Respondent has failed to deal with the access application “in good faith”. To the contrary, the Applicant’s evidence provides some explanation for the very “maladministration” of which he complains – he refers to “issues within Council both financially and operationally” and significant staff turnover.

47. None of the Applicant’s criticisms of the Respondent’s conduct amount to “maladministration” or “improper conduct” or are indicative of “bad faith”, on the material before the Tribunal. The fact that the Respondent ultimately issued four decisions is, contrary to the Applicant’s submission, indicative that the Respondent is engaging with its obligations under the GIPA Act and attempting to ensure that every effort is made to release further information to the Applicant, which is appropriately released. The second decision quite appropriately reconsidered the first decision and resulted in further release of information. The Respondent clearly took the IPC referral seriously and conducted a second review, which resulted in more material being identified and released. The Respondent’s conduct following the IPC review report also demonstrates it took the criticisms contained in that report seriously, and accepted the recommendations made by the IPC, which resulted in the decision of 17 May 2023 and the conduct of further searches and further information identified and released.

48. The deletion of records by a former employee is unfortunate but, again, does not of itself demonstrate any systemic issue. The Respondent has been open and transparent in admitting the conduct and explaining how it occurred. The Applicant has not disputed that evidence. It may well be that the Respondent has not complied with its obligations under the State Records Act 1998 (NSW) or other legislation, but this is not a matter that falls within the Tribunal’s jurisdiction in these proceedings and I therefore will not consider that issue or make any such findings.

49. With respect to the Respondent’s allegation that the Applicant had commenced or was pursuing these proceedings for a collateral purpose, I also reject that submission. The Applicant is entitled to seek review of the Respondent’s decision with respect to the information it has withheld from him under the GIPA Act, pursuant to ss 80 and 100 of the GIPA Act. The review processes – including the Respondent’s internal review, the external IPC review and within this Tribunal – have resulted in a significant number of additional documents being released to the Applicant. Even without the allegations or complaints he has made about the Respondent’s conduct or its compliance with its GIPA Act obligations, there remains a legitimate basis for the Tribunal’s review of the information ultimately withheld by the Respondent, and therefore for these proceedings.

Whether documents appropriately withheld

50. Turning then to the review of those 768 records withheld in whole or in part by the Respondent. At hearing the Applicant clarified he challenged the withholding of any documents or information on the basis of paragraphs 1(f) or 3(c) of the table to s 14 of the GIPA Act, and cl 5(1) of Schedule 1 to the GIPA Act. He stated that he did not wish to have access to personal information withheld pursuant to item 3(a) of the table to s 14 of the GIPA Act, or irrelevant materials. This means that he did not press for access to information which was withheld regarding:

1. matters not relevant to him or his property;

2. information relating only to a neighbouring property (which were not relevant to him or his property);

3. personal or Council specific information, such as phone numbers or email addresses.

51. The Applicant was content with the Respondent’s identification of which records or information within the 768 documents fell within those categories. The Respondent provided the Tribunal with a 19 page table identifying the remaining withheld information in issue, a copy of which is annexed to these reasons for decision. The Applicant accepted the accuracy of the table.

52. It is apparent from that table that the Respondent has determined not to press its claim for privilege, or has otherwise waived privilege, over a number of documents which were previously withheld on that basis. This demonstrates, again, the Respondent engaging positively with its obligations under the GIPA Act by considering the waiver of LPP where appropriate, in accordance with cl 5(2) of Schedule 1 to the GIPA Act.

53. There are 53 records remaining which are withheld in whole or in part by the Respondent, for which the Applicant presses access. Two of these records are withheld by the Respondent on the basis of item 1(f) of the table to s 14 of the GIPA Act as:

Information is not relevant to Mr Lensing’s property so item 1(f) of the table in s 14 of the Act is directly engaged and no prejudice is suffered by Mr Lensing.

54. The remainder are withheld on the basis that they are subject to LPP.

55. Pursuant to cl 5(3) of Schedule 1 of the GIPA Act, the Tribunal cannot review the Respondent’s decision to waive or not waive a claim for LPP. All the Tribunal can do is review the information and determine whether it falls within the definition of LPP. If it does, the information must be withheld pursuant to cl 5(1) of Schedule 1 of the GIPA Act. There is no balancing exercise to be engaged as a result of the overriding presumption against its disclosure.

56. In relation to determining whether information was subject to LPP, the Respondent submitted:

[4] The relevant common law principles for privileged documents are comprehensively set out by Moshinsky J in Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278 at [135]-[182]. At a high level, as relevant to these submissions, they are:

(a)   To qualify as privileged, the lawyers advice must satisfy the description of professional advice given by a lawyer in his or her capacity as such: at [139] relying on AWB Ltd v Cole (2006) 152 FCR 382 at [101] per Young J;

(b)   It attaches to a copy of documents that is provided to a lawyer if the copy was made for the dominant purpose of obtaining legal advice, even where the original document is not privileged: at [141] relying on Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at per Gleeson CJ, Gaudron and Gummow JJ, and AWB Ltd v Cole (2006) 152 FCR 382 at [44](11) per Young J;

(c)   It extends to any document prepared by a lawyer or client from which there might be inferred the nature of the advice sought or given: at [142] relying on Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 569 per Gummow and AWB Ltd v Cole (2006) 152 FCR 382 at [127]-[139] per Young J;

(d)   Confirming the dominant purpose of the communication (e.g. the emails in this case) is to be done by reference to ‘content, context and evidence as well as form of the document’: at [145] relying on Seven Network Ltd v News Ltd [2005] FCA 142 at [6] per Tamberlin J, Commissioner of Taxation (Cth) v Pratt Holdings (2005) 225 ALR 266 at [30] per Kenny J and Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 at [11] per Thawley J – this is significant here as the Tribunal need not receive further evidence beyond the context of the Land and Environment Court proceedings and the face of the documents themselves;

(e)   It is not limited to advice itself, but encompasses a broader range of material – such as a continuum of communication and meetings between the solicitor client: at [148] relying on Balabel v Air India [1988] 1 Ch 317 at 330 per Taylor LJ – relevant here as attachments and communications that all occurred in the context of the Land and Environment Court proceedings are within the relevant class of documents;

(f)   The client includes:

(i)   an agent: at [154]-[155] relying on Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [1] & [22] per Finn J – relevant here as third parties (as agents) engaged for the Land and Environment Court proceedings are considered to be the client for the purposes of privilege consideration; and

(ii)   third parties: at [156] relying on Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [41]-[42] & [49] per Finn J and at [105]-[107] per Stone J – relevant here as third parties engaged for the Land and Environment Court proceedings are considered to be the client for the purposes of privilege consideration;

(g)   where the documents can be broken up into parts of documents that is an appropriate way to approach the analysis: at [174] relying on Kennedy v Wallace (2004) 142 FCR 185 at [158]-[159] per Allsop J (as his Honour then was); and

(h)   as to email chains, by reference to the last chain in the email or any earlier emails in the chain from the email that is privileged, the test of the dominant purpose being a privileged purpose applies: Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278 at [175] per Moshinsky J relying on Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 at [19] per Thawley J.

(footnotes omitted)

57. I accept those submissions. I note that some of the documents over which privilege was claimed included client communications between Marsdens Law Group and their client and third parties. Despite those third parties not acting as “agents” for the client, I consider that privilege attaches to that specific information because of the nature of the communication which was enabling the client to obtain, and the solicitor to give, legal advice. As discussed in Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [41]-[42] per Finn J:

To deny that a third party is an agent in such circumstances does not, though, provide a sufficient or principled reason for denying privilege to the documentary communication (or contents) it has authored. The important consideration in my view is not the nature of the third party’s legal relationship with the party that engaged it but, rather, the nature of the function it performed for that party. If that function was to enable the principal to make the communication necessary to obtain legal advice it required, I can see no reason for withholding the privilege from the documentary communication authored by the third party. That party has been so implicated in the communication made by the client to its legal adviser as to bring its work product within the rationale of legal advice privilege.

There are, in my view, clear reasons of policy that support extending the privilege to such third party authored documentary communications. Whether a natural person or a corporation, a party seeking to obtain legal advice may not have the aptitude, knowledge, skill and expertise, or resources to make adequately, appropriately or at all such communication to its legal adviser as is necessary to obtain the advice required. Such is commonplace today where advice is sought on complex and technical matters. To deny that person the ability to utilise the services of a third party to remedy his or her own inability or inadequacy unless he or she is prepared to forego privilege in the documents prepared by the third party, is to disadvantage that person relative to another who is able adequately to make the desired communication to a legal adviser by relying upon his or her own knowledge, resources, etc.

58. Dealing first with those 2 records withheld in part, on the basis that the release of the redacted information would prejudice the effective exercise by an agency of the agency's functions, being Items 18 and 25 from the mailbox of Cheryl Klein, in Folder 3. Those records each contain email chains which forward an identical email dated 6 April 2021. The redactions in that email of 6 April 2021 are placed over the same information. Having reviewed the information subject to the redactions, I do not understand how the release of that information would prejudice the effective exercise by the Respondent of its functions. I accept that the information does pertain to the Respondent’s functions, as demonstrated by the unredacted headings of “Agenda review: Governance and Financial reports”, “Management reports”, “Minutes of Committee Meetings” and “confidential”. However, I can confirm that the information redacted is not relevant to the Applicant’s access application for information pertaining to his property, or the neighbouring properties he identified in his access application, and access is therefore also not pressed by the Applicant. In those circumstances the Respondent is justified in withholding the information by way of redaction.

59. As discussed above, each of the remaining records withheld by the Respondent on the basis that they are subject to a claim for LPP have already been considered for waiver of that privilege by the Respondent pursuant to cl 5(2) of Schedule 1 to the GIPA Act, and the Respondent has decided not to waive privilege. That decision is not reviewable by this Tribunal, pursuant to cl 5(3) of Schedule 1 of the GIPA Act.

60. The following table identifies each remaining record withheld in whole or part by the Respondent on the basis of LPP, and my findings as to whether the information contained within that record does, in fact, fall within the definition of LPP I have accepted above:

Item No	Folder (of 13)	Respondent’s submission	Tribunal findings
Bradley Allen mailbox
6	1	Request for legal advice and therefore subject to privilege per above explanations.	Request for legal advice and therefore subject to LPP
Becci Trewothan mailbox
4	3	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.	Communications between Marsdens Law Group and its client regarding litigation and therefore subject to LPP
27	3	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings including the giving of advice.	Communications between Marsdens Law Group and its client regarding litigation, including the giving of advice, and therefore subject to LPP
66	3	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.	Communications between Marsdens Law Group and its client regarding litigation and therefore subject to LPP
Mark Kirton mailbox
6	4	Contains request for legal advice and therefore the content of the advice.	Email communications containing drafts of request for legal advice for the purpose of litigation and therefore subject to LPP
15	4	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.	Communications between Marsdens Law Group and its client regarding litigation and therefore subject to LPP
17	4	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.	Communications between Marsdens Law Group and its client regarding litigation, including the giving of advice, and therefore subject to LPP
21	4	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.	Communications between Marsdens Law Group and its client regarding litigation, including the giving of advice, and therefore subject to LPP
29	4	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.	Email communication containing drafts of request for legal advice for the purpose of litigation and therefore subject to LPP
35	4	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.	Communications between Marsdens Law Group and its client regarding litigation, including the giving of advice, and therefore subject to LPP
51	4	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.	Client email regarding the obtaining of legal advice from which there might be inferred the nature of the advice sought or given, and therefore subject to LPP
64	4	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.	Communications between Marsdens Law Group and its client regarding litigation, including the giving of advice, and therefore subject to LPP
Matthew Hyde mailbox
69	4	Legal Advice provided to Council and therefore privileged.	Legal advice from Marsdens Law Group to the client and therefore subject to LPP
Nick Wilton mailbox part 1 of 5
26	6	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Legal advice from Marsdens Law Group to client and communications regarding litigation and therefore subject to LPP.
39	6	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged	Legal advice from Marsdens Law Group to client and communications regarding litigation and therefore subject to LPP.
61	6	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Legal advice from Marsdens Law Group to the client and therefore subject to LPP
81	6	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Draft of communications with Marsdens Law Group prepared for the purpose of litigation and therefore subject to LPP
85	6	Discussion of negotiation positions and privileged as a document prepared for proceedings and settlement of them.	Draft of documents prepared for the purpose of litigation and settlement negotiations and therefore subject to LPP
101	6	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged	Legal advice from Marsdens Law Group to client and communications regarding litigation and therefore subject to LPP.
Nick Wilton mailbox part 2 of 5
25A	8	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Legal advice from Marsdens Law Group to client regarding litigation and therefore subject to LPP.
27	8	Legal Advice and discussion of proceedings and offers provided to Council and otherwise discussion of the proceedings and therefore privileged.	Legal advice from Marsdens Law Group to client and communications regarding litigation and therefore subject to LPP.
29	8	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Legal advice from Marsdens Law Group to client and therefore subject to LPP.
37	8	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Legal advice from Marsdens Law Group to client and communications regarding litigation and therefore subject to LPP.
51	8	Contains request for legal advice and therefore the content of the advice and therefore privileged.	Email communication containing request for legal advice for the purpose of litigation and therefore subject to LPP
52	8	Contains request for legal advice and therefore the content of the advice and therefore privileged.	Email communication containing request for legal advice for the purpose of litigation and therefore subject to LPP
54	9	Contains request for legal advice and therefore the content of the advice and therefore privileged.	Email communication containing request for legal advice for the purpose of litigation and therefore subject to LPP
90	9	Contains request for legal advice and therefore the content of the advice and therefore privileged.	Client emails regarding the obtaining of legal advice from which there might be inferred the nature of the advice sought or given, and therefore subject to LPP
Nick Wilton mailbox part 3 of 5
54	9	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged	Draft of communications with Marsdens Law Group and documents prepared for the purpose of litigation and therefore subject to LPP
61	9	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged	Draft of communications with Marsdens Law Group and documents prepared for the purpose of litigation and therefore subject to LPP
Nick Wilton mailbox part 4 of 5
53	11	Contains request for legal advice and therefore the content of the advice and therefore privileged.	Client emails regarding the obtaining of legal advice from which there might be inferred the nature of the advice sought or given, and therefore subject to LPP
87	12	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Communications between Marsdens Law Group and its client regarding litigation, including the giving of advice and instructions, and therefore subject to LPP
Nick Wilton mailbox part 5 of 5
12	12	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Legal advice from Marsdens Law Group to client and communications regarding instructions and advice and therefore subject to LPP.
13	12	Legal Advice requested from Council and otherwise discussion of the proceedings and therefore privileged.	Client emails regarding the obtaining of legal advice from which there might be inferred the nature of the advice sought or given, and therefore subject to LPP
16	12	Legal Advice requested from Council and otherwise discussion of the proceedings and therefore privileged.	Communications between Marsdens Law Group and client regarding instructions and the obtaining of legal advice from which there might be inferred the nature of the advice sought or given, and therefore subject to LPP.
19	12	Legal advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Communications between Marsdens Law Group and its client regarding the obtaining of legal advice from which there might be inferred the nature of the advice sought or given, and therefore subject to LPP
20	12	Legal advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Communications between Marsdens Law Group and its client regarding the obtaining of legal advice from which there might be inferred the nature of the advice sought or given, and therefore subject to LPP
28	12	Legal advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Draft of communications with Marsdens Law Group and documents prepared for the purpose of litigation and therefore subject to LPP
33	12	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Communications with Marsdens Law Group for the purpose of litigation, regarding legal advice and instructions, and therefore subject to LPP
34	12	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Communications with Marsdens Law Group for the purpose of litigation, regarding legal advice and instructions, and therefore subject to LPP
35	12	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Communications with Marsdens Law Group for the purpose of litigation, regarding legal advice and instructions, and therefore subject to LPP
52	12	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Legal advice from Marsdens Law Group to client and communications regarding instructions and advice and therefore subject to LPP.
54	13	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Legal advice from Marsdens Law Group to client (3rd party) and communications regarding instructions and advice and therefore subject to LPP.
56	13	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Legal advice from Marsdens Law Group to client (3rd party) and communications regarding instructions and advice and therefore subject to LPP.
64	13	Contains request for legal advice and therefore the content of the advice and therefore privileged.	Draft of communications with Marsdens Law Group and documents prepared for the purpose of litigation and therefore subject to LPP
68	13	Privileged material, including on a separate litigation in which Mr Lensing has no interest.	Client communications, draft of communications with Marsdens Law Group, and documents prepared for the purpose of litigation, and therefore subject to LPP
69	13	Contains request for legal advice and therefore the content of the advice and therefore privileged.	Client communications, draft of communications with Marsdens Law Group, and documents prepared for the purpose of litigation, and therefore subject to LPP
84	13	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Communications with Marsdens Law Group and documents prepared for the purpose of litigation and therefore subject to LPP
94	13	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Communications with Marsdens Law Group and documents prepared for the purpose of litigation and therefore subject to LPP
95	13	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.	Request for legal advice and therefore subject to LPP
96	13	Contains request for legal advice and therefore the content of the advice and therefore privileged.	Client communications, draft of communications with Marsdens Law Group, and documents prepared for the purpose of litigation, and therefore subject to LPP
Paul Holton mailbox
15	13	Contains request for legal advice and therefore the content of the advice and therefore privileged.	Client emails regarding the obtaining of legal advice from which there might be inferred the nature of the advice sought or given, and therefore subject to LPP

61. On my review of each of the documents or parts of documents withheld by the Respondent on the basis that the information was the subject of legal professional privilege, I have agreed with the Respondent. Pursuant to cl 5(1) of Schedule 1 to the GIPA Act, there is an overriding presumption against the disclosure of this information. I have also found that the Respondent has complied with its obligations to consider whether it could waiver the privilege attaching to each piece of information withheld, pursuant to cl 5(2) of Schedule 1 of the GIPA Act.

62. The Respondent has discharged its obligations under the GIPA Act in relation to the Applicant’s access application. The correct and preferable decision is therefore to affirm the Respondent’s decision of 17 May 2023 in accordance with these reasons for decision, and otherwise dismiss the Applicant’s application for review.

Orders

1. The Respondent’s decision of 17 May 2023 is affirmed.

2. The Applicant’s application for review is otherwise dismissed.

**********

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

Registrar

Respondent’s Table of withheld information

Item No	Folder (of 13)1	Release (Y/N)	Explanation if not released
Andrew Vaz Mailbox
9	1	Y
11	1	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
12	1	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
22	1	Y
24	1	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
25	1	Y
Bradley Allen Mailbox
6	1	N	Request for legal advice and therefore subject to privilege per above explanations.
24	1	Y	Only relevant challenge is privilege (the phone numbers and email addresses are not sought by Mr Lensing) and it is privileged as it is a communication from Marsdens Law Group to its client regarding Court proceedings. Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise privilege claim not pressed.
Becci Trethowan Mailbox
1	1	Y
2	1	Y
3	2	Y
4	3	N	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.
27	3	N	Only relevant challenge is privilege (the phone numbers and email addresses and unrelated information are not sought by Mr Lensing) It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings including the giving of advice.
38	3	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
51	3	Y
52	3	Y
54	3	Part	Only personal information number resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
55	3	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
57	3	Y
63	3	Y
64	3	Y
66	3	Y	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings. But content to release the attachments (not the email correspondence itself).
Cheryl Klein Mailbox2
18	3	N	Information is not relevant to Mr Lensing’s property so item 1(f) of the table in s 14 of the Act is directly engaged and no prejudice is suffered by Mr Lensing. There are also email addresses that would otherwise be redacted consistent with all other documents in this table.
25	3	N	Information is not relevant to Mr Lensing’s property so item 1(f) of the table in s 14 of the Act is directly engaged and no prejudice is suffered by Mr Lensing. There are also email addresses that would otherwise be redacted consistent with all other documents in this table.
Hansie Armour Mailbox
19	3	Y
Hamish McNulty Mailbox
2	3	N	Only personal information resisted per Mr Lensing not challenging that restriction.
6	3	N	Only personal information, or information not relevant to Mr Lensing, resisted per Mr Lensing not challenging that restriction.
Jeannie Moran-Fahey Mailbox
6	3	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
10	3	N	Only personal information, or information not relevant to Mr Lensing, resisted per Mr Lensing not challenging that restriction.
James Hayes Mailbox
4	3	N	Only personal information resisted per Mr Lensing not challenging that restriction.
4A	3	Y	Excerpt of Tumut & Adelong Times newspaper relevant to request has been included.
7	3	Y
Ken Goldthorp Mailbox
5	3	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
6	3	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
10	3	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
14	3	Y
19	3	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
21	3	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
23	3	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
26	3	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
Mark Kirton Mailbox
4	4	N	Only personal information, or information not relevant to Mr Lensing, resisted per Mr Lensing not challenging that restriction.
5	4	N	Only personal information resisted per Mr Lensing not challenging that restriction.
6	4	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed. Contains request for legal advice and therefore the content of the advice.
15	4	N	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.
17	4	N	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise it is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.
18	4	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
21	4	N	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise it is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.
24	4	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
28	4	Y
29	4	N	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.
31	4	Y
32	4	Y
35	4	N	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise it is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.
40	4	Y
51	4	N	It is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.
54	4	Y
57	4	Y
59	4	Y
61	4	Y
64	4	N	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise it is privileged as it is a communication to Marsdens Law Group to its client regarding Court proceedings.
65	4	Y
68	4	Y
72	4	Y
Matthew Hyde Mailbox
5	4	N	Personal information resisted per Mr Lensing not challenging that restriction.
10	4	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
11	4	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
13	4	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
25	4	N	Personal information resisted per Mr Lensing not challenging that restriction.
27	4	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
55	4	N	Personal information resisted per Mr Lensing not challenging that restriction.
61	4	N	Personal information resisted per Mr Lensing not challenging that restriction.
66	4	N	Personal information resisted per Mr Lensing not challenging that restriction.
69	4	N	Legal Advice provided to Council and therefore privileged.
72	4	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
75	4	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
80	4	N	Personal information resisted per Mr Lensing not challenging that restriction.
87	4	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
91	4	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
Nick Wilton Mailbox: Part 1 of 5
6	4	Y
9	4	Part	Only personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
9A	4	Y
11	5	Y
12	5	Y
17	6	Y	Some information pertains to different property – Lot 11 Bombowlee Ave.
19	6	Y
24	6	Y
26	6	N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
39	6	Y N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged
43	6	N	Only personal information resisted per Mr Lensing not challenging that restriction.
47	6	Y
61	6	N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
66	6	Y
67	6	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
81	6	Y N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
83	6	Y
85	6	N	Discussion of negotiation positions and privileged as a document prepared for proceedings and settlement of them.
86	6	Part	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
90	6	Y
96	6	Part	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
101	6	Y N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged
102	6	Part	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
104	6	Part	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
107	6	Part	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
109	6	Part	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
110	6	Part	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
Nick Wilton Mailbox: Part 2 of 5
1	6/7	Y	Some information pertains to a different property.
2	7	Y
3	7	Y N	Information pertains to a different property.
5	7	Y N	Information pertains to a different property.
6	8	Y N	Information pertains to a different property.
8	8	Y N	Information pertains to a different property.
12	8	Y	Some information pertains to a different property.
19	8	Y
24	8	Y
25	8	Y
25A	8	N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
27	8	N	Legal Advice and discussion of proceedings and offers provided to Council and otherwise discussion of the proceedings and therefore privileged.
29	8	N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
37	8	N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
39	8	Y
41	8	N	Unrelated material from other matters.
48	8	Y
51	8	N Y	Contains request for legal advice and therefore the content of the advice and therefore privileged.
52	8	Y N	Contains request for legal advice and therefore the content of the advice and therefore privileged.
53	9	N Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed. Some information pertains to a different property.
54	9	Part N	Contains request for legal advice and therefore the content of the advice and therefore privileged. Personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
55	9	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
56	9	Y
60	9	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
61	9	Y
62	9	Y
63	9	Y
64	9	Y
65	9	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
66	9	Y
70	9	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
71	9	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
74	9	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
75	9	N	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privileged material on separate litigation in which Mr Lensing has no interest.
82	9	N	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privileged material on separate litigation in which Mr Lensing has no interest.
85	9	Y
86	9	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
88	9	Y
90	9	Y Part	Contains request for legal advice and therefore the content of the advice and therefore privileged.
91	9	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise previous privilege claim not pressed.
92	9	Y
99	9	N	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privileged material on separate litigation in which Mr Lensing has no interest.
100	9	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
Nick Wilton Mailbox: Part 3 of 5
1	9	Y
4	9	Y
5	9	Y
6	9	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
8	9	Y
10	9	Y
14	9	Y
16	9	Y
22	9	Y
30	9	Y
40	9	Y
52	9	Part	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
54	9	Y N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged
61	9	Y N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged
64	9	Y
65	9	Y
70	9	Y
73	9	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction.
80	9	N	Personal information resisted per Mr Lensing not challenging that restriction.
86	9	N	Personal information resisted per Mr Lensing not challenging that restriction.
91	9	Y
94	9	Y
98	9	Y
99	9	Y
Nick Wilton Mailbox: Part 4 of 5
4	9/10	Y
5	10	Y
6	11	Y
8	11	Y
13	11	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction
18	11	Y
19	11	Y
20	11	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction
21	11	N	Personal information, or unrelated information, resisted per Mr Lensing not challenging that restriction
22	11	N	Personal information resisted per Mr Lensing not challenging that restriction.
27	11	Part	Personal information resisted per Mr Lensing not challenging that restriction.
46	11	Y
52	11	Y
53	11	Part	Contains request for legal advice and therefore the content of the advice and therefore privileged. Otherwise privileged material on separate litigation in which Mr Lensing has no interest.
55	11	Y
57	11	Y
60	11	Y
61	11	Y
62	11	Part	Personal information resisted per Mr Lensing not challenging that restriction.
63	11	Y
64	11	Y
66	11	Y
68	11	Y
69	11	Y
71	11	Part	Personal information resisted per Mr Lensing not challenging that restriction.
72	11	Part	Personal information resisted per Mr Lensing not challenging that restriction.
73	11	Y
75	11	Y
77	11	Y
78	11	Y
80	11	Y
81	11	Y
84	12	Y
85	12	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privilege not pressed.
87	12	N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
88	12	Y
89	12	Y
90	12	Y
91	12	Y
92	12	Y
94	12	Y
99	12	Y
Nick Wilton Mailbox: Part 5 of 5
1	12	Y
3	12	Y
7	12	Y
12	12	N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
13	12	N	Legal Advice requested from Council and otherwise discussion of the proceedings and therefore privileged.
16	12	N	Legal Advice requested from Council and otherwise discussion of the proceedings and therefore privileged.
19	12	Y N	Legal advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
20	12	Y N	Legal advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
21	12	Y
22	12	Y
23	12	Y
24	12	Y
26	12	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privilege not pressed.
27	12	N	Personal information resisted per Mr Lensing not challenging that restriction.
28	12	Y N	Legal advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
30	12	N	Personal information resisted per Mr Lensing not challenging that restriction.
31	12	N	Personal information resisted per Mr Lensing not challenging that restriction.
32	12	Y
33	12	Y Part	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
34	12	Y Part	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
35	12	Y Part	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
37	12	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privilege not pressed. Some information pertains to a different property.
40	12	Y
46	12	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privilege not pressed.
47	12	Y
48	12	Y
49	12	Y
50	12	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privilege not pressed.
51	12	Y	Some information pertains to a different property.
52	12	N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
53	13	Y
54	13	N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
55	13	Y
56	13	N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
57	13	Y
58	13	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privilege not pressed.
59	13	Y
60	13	Y
61	13	Y
62	13	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privilege not pressed. Some information does not pertain to Mr Lensing’s property.
63	13	Y
64	13	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privilege not pressed. Contains request for legal advice and therefore the content of the advice and therefore privileged.
65	13	Y
66	13	Y
68	13	N	Personal information resisted per Mr Lensing not challenging that restriction. Privileged material, including on a separate litigation in which Mr Lensing has no interest.
68A	13	N	Related to a different property.
69	13	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privilege not pressed. Contains request for legal advice and therefore the content of the advice and therefore privileged.
70	13	Y	Some information related to different properties.
72	13	Y	Some information related to different properties.
77	13	Y
82	13	Y
83	13	Y
84	13	Y N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
85	13	Part

87	13	Y
92	13	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privilege not pressed.
94	13	Y N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
95	13	Y N	Legal Advice provided to Council and otherwise discussion of the proceedings and therefore privileged.
96	13	Part	Personal information resisted per Mr Lensing not challenging that restriction. Contains request for legal advice and therefore the content of the advice and therefore privileged. Otherwise privilege not pressed.
100	13	Y
101	13	Part	Personal information resisted per Mr Lensing not challenging that restriction. Otherwise privilege not pressed. Some information related to different properties.
102	13	Y
103	13	Y
Paul Holton Mailbox
15	13	N Y	Contains request for legal advice and therefore the content of the advice and therefore privileged.

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: 21 March 2024