Lipscombe v Blue Mountains City Council - [2020] NSWCATAD 121

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121
Hearing dates: 3 April 2019; 5 August 2019; 28 October 2019; 16 December 2019
Date of orders: 04 May 2020
Decision date: 04 May 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
The decision under review is affirmed

Catchwords: ADMINISTRATIVE LAW – Government Information (Public Access) Act -– legal professional privilege – whether privilege waived
Legislation Cited: Government Information (Public Access) Act 2009
Civil and Administrative Tribunal Act 2013
Administrative Decisions Review Act 1997
Evidence Act 1995
Work Health and Safety Act 2011
Cases Cited: Attorney General (NT) v Maurice and Others (1986) 161 CLR
CHU Underwriting Pty Ltd v Hunter Water Corporation [2018] NSWCATAD 273
Mann v Carnell (1999) 201 CLR 1
Mannix v Department of Education and Communities [2014] NSWCATAD 35
Texts Cited: None cited
Category: Principal judgment
Parties: Mark Lipscombe (Applicant)
Blue Mountains City Council (Respondent)
Representation:
Counsel:
P Singleton (Respondent)
Solicitors:
Applicant (Self Represented)
McPhee Kelshaw (Respondent)

File Number(s): 2018/00355062
Publication restriction: Section 64(d) of the Civil and Administrative Tribunal Act 2013 applies to the material that was received by the Tribunal on a confidential basis.

Reasons for Decision

Introduction

This is an application for administrative review of a decision of the Blue Mountains City Council (“the Council” or “the Respondent”) concerning access to government information. The application is brought under the Government Information (Public Access) Act 2009 (“the GIPA Act”).

Background

Mr Lipscombe ("the Applicant") applied under the GIPA Act for access to information held by the Council. The information relates to independent investigations into asbestos management and risk issues involving the Council. In his access application the Applicant requested:

All reports, either interim or final, including all attachments, annexures and/or addendums, that arise out of any inquiry or similar process conducted for Council by Michael Tooma, or by the firm Clyde & Co. from 1 November 2017 up to and including the date of this request.

Two reports that were identified as falling within the scope of the access application are the subject of these proceedings. Those reports are identified as:

“Report 1 - Asbestos Management at Lawson Carpark, Lawson Mechanics Institute and Lawson Depot”. This report is referred to as Interim Report 1 or IR1.

“Report 2 - Identification of Asbestos Contaminated Material at the Former Blackheath Tip and access to that site once asbestos was known” This report is referred to as Interim Report 2 or IR2.

The Council decided to refuse to provide access to the information. It considered that there is a conclusive presumption against disclosure of the information as it would be privileged from production in legal proceedings on the ground of legal professional privilege: clause 5 of Schedule 1 of the GIPA Act.
The Applicant applied for external review of the Council’s decision by the Information Commissioner. The Information Commissioner concluded that the decision was not justified and recommended…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Lipscombe v Blue Mountains City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWCATAD 121
Decision Date: 04 May 2020

CaseChat Overview and Summary

The case of Lipscombe v Blue Mountains City Council was heard in the Supreme Court of New South Wales. The plaintiff, Mr. Lipscombe, sought to obtain certain documents from the defendant, Blue Mountains City Council, under the Government Information (Public Access) Act. The council refused to disclose the documents, citing legal professional privilege. Mr. Lipscombe argued that the council had waived any privilege by disclosing similar information to third parties.

The primary legal issue before the court was whether the council had waived its right to claim legal professional privilege in relation to the documents sought by Mr. Lipscombe. The court had to consider whether the council's previous disclosure of similar information to third parties constituted a waiver of privilege. The court also had to determine the scope of legal professional privilege and whether it applied to the documents in question.

The court found that the council had not waived its right to claim legal professional privilege. The judge held that the council's disclosure of similar information to third parties was not sufficient to constitute a waiver of privilege. The court further found that the documents in question were protected by legal professional privilege as they related to legal advice provided to the council. The court held that the council was entitled to refuse to disclose the documents under the Government Information (Public Access) Act. The decision of the council to refuse disclosure was affirmed.

Orders

Orders of the court

The decision under review is affirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121
Hearing dates:	3 April 2019; 5 August 2019; 28 October 2019; 16 December 2019
Date of orders:	04 May 2020
Decision date:	04 May 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision under review is affirmed
Catchwords:	ADMINISTRATIVE LAW – Government Information (Public Access) Act -– legal professional privilege – whether privilege waived
Legislation Cited:	Government Information (Public Access) Act 2009 Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Evidence Act 1995 Work Health and Safety Act 2011
Cases Cited:	Attorney General (NT) v Maurice and Others (1986) 161 CLR CHU Underwriting Pty Ltd v Hunter Water Corporation [2018] NSWCATAD 273 Mann v Carnell (1999) 201 CLR 1 Mannix v Department of Education and Communities [2014] NSWCATAD 35
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Mark Lipscombe (Applicant) Blue Mountains City Council (Respondent)
Representation:	Counsel: P Singleton (Respondent) Solicitors: Applicant (Self Represented) McPhee Kelshaw (Respondent)
File Number(s):	2018/00355062
Publication restriction:	Section 64(d) of the Civil and Administrative Tribunal Act 2013 applies to the material that was received by the Tribunal on a confidential basis.