McMahon v Northern Beaches Council

[2021] NSWCATAD 137

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

McMahon v Northern Beaches Council [2021] NSWCATAD 137

Hearing dates:

14 December 2020

Date of orders:

26 May 2021

Decision date:

26 May 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R L Hamilton SC, Senior Member

Decision:

The application is dismissed

Catchwords:

ADMINISTRATIVE LAW – access to information – legal professional privilege

Legislation Cited:

Government Information (Public Access) Act 2009

Evidence Act 1995 (NSW)

Cases Cited:

None cited

Category:

Principal judgment

Parties:

Gerard McMahon (Applicant)
Northern Beaches Council (Respondent)

Representation:

Solicitors
David Le Page Solicitor (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/00260014

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. This is an application for review by the Tribunal of the decision of the Respondent, the Northern Beaches Council (which, together with the antecedent local government bodies that were merged into so as to become the Respondent, I shall refer to as “the Council”), not to provide access to a number of documents which fall within the scope of a request made by the Applicant in April 2020 in the following terms;

“all documents including notes of conversations, letters, memoranda and the like both internal and external relating to the allocation of costs for shared facilities in a Strata Management Statement for the management and operation of the Peninsula Building Manly to which Manly Council was a party. The Strata Management Statement was requested in October 2000 therefore the documents registered [sic] would have been created in a period of 24 months prior.”

2. The Council provided access to some documents but refused to provide access to other documents on the ground that the documents were the subject of legal professional privilege or were “commercial-in-confidence.” The Applicant in June 2020 requested, and the Council undertook, an internal review of its decision. As a result of that review, the Council identified 26 documents relevant to the Applicant’s access application, to 16 of which it refused access as being the subject of legal professional privilege.

3. It is the refusal to provide access to those 16 documents (“the LPP documents”) which is the subject of this review by the Tribunal.

4. For the reasons which follow, the application is dismissed.

The Statutory Obligation to Provide Access

5. Section 5 of the Government Information (Public Access) Act 2009 (“the Act”) provides that “There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.” In furtherance of that presumption, section 9(1) provides that that “A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.”

6. Section 14(1) of the Act provides that “It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.”

7. Item 5 in Schedule 1 is in these terms:

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.

8. The Council, the relevant “agency” in the present case, has considered whether it would be appropriate to waive legal professional privilege in respect of the LPP documents and decided that it would not be appropriate to do so. That decision is not reviewable by the Tribunal. In consequence, the only matter for review by the Tribunal is whether the LPP documents “would be privileged from production in legal proceedings on the ground of client legal privilege.”

Some Background Facts

9. Although not directly relevant to the limited question remaining before the Tribunal, the background circumstances of the dispute provide some context in which the question arises for decision.

10. The Applicant sought access to documents, and made the present application for review, as a member of the Strata Committee of The Owners – Strata Plan 63767. The Owners Corporation of SP 63767 is bound by the Strata Management Statement of Strata Plan 63766 (“the SMS”). The strata plans effect a strata subdivision of property at 11-25 Wentworth Street, Manly, known as “The Peninsula”. An antecedent of the Council was an owner of land consolidated into the land subdivided by SP 63766, and participated in the negotiation of the terms of the SMS.

11. The SMS provides for the establishment and decisions of a Building Management Committee, and for the allocation of costs for façade and refurbishment works among the parties to the SMS. A dispute subsequently arose among the parties as to the fair allocation of those costs, and in connection with that dispute information was sought by the Applicant on behalf the Owners Corporation of SP 63767, from the Council, as to how the allocation in the SMS had been arrived at. At the Council’s suggestion the request was formalised as an application under the Act.

The Applicant’s Inference that there are Missing Documents

12. In an affidavit supporting his application the Applicant sets out at some length his reasons for inferring that there must have been more information and documents than were provided by the Council. In response Mr Wilson, the Council officer who made the decision under review, undertook a re-examination of the Council’s records and concluded that the documents held by the Council either (i) had been provided to the Applicant, (ii) fell outside the scope of the Applicant’s request (for example, because they did not relate to the allocation of costs for shared facilities), or (iii) were subject to legal professional privilege.

13. Mr Wilson was cross-examined at some length about the likelihood that other documents had been created. He deposed that a thorough examination had been undertaken, by him and by the Council’s archives administrator, who had worked as archivist at Manly Council before its amalgamation into the Council and was more familiar than he with Manly Council’s different archiving systems. At the end of his evidence he gave an undertaking to re-examine the materials in the Council’s archives to determine whether there was any further material responsive to the Applicant’s request. Some particular documents to be searched for pursuant to that undertaking were identified in a letter from the Applicant’s solicitor after the hearing.

14. Mr Wilson subsequently affirmed a further affidavit in which he deposed that an additional file had been found, and that all documents in that file not the subject of LPP claims had been, or would be, provided to the Applicant. Mr Wilson’s evidence is that the Council now holds no documents falling within the terms of the Applicant’s application that have not either been provided to the Applicant or been excluded from production as subject to legal professional privilege.

15. I accept Mr Wilson’s evidence. In the circumstances that any documents would have been created more than 20 years earlier and that three local authorities had been merged into one, the evidence that there are no further documents held by the Council, and the inference that there may have been created some documents no longer held, is not inherently implausible. On the material before the Tribunal I find that the Respondent has produced to the Applicant all the documents held by it that are within the scope of his application with the exception of the LPP documents.

The Legal Professional Privilege Exclusion

16. The criterion for exclusion from the obligation in section 9(1) afforded by Item 5(1) is that the “information … would be privileged from production in legal proceedings on the ground of client legal privilege.”

17. What is privileged from production in legal proceedings is provided for in Part 3.10 of the Evidence Act 1995 (NSW). Client legal privilege is dealt with in Division 1 of that Part. Materially for present purposes, s 118 provides that

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.

Section 118 deals with the adducing of evidence. Section 131A deals with pre-trial production in legal proceedings:

(1)   If—

(a)   a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1 …, and

(b)   the person objects to giving that information or providing that document,

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

18. Section 122 deals with waiver: the Division “does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence…”.

19. Section 125(1) deals with misconduct, providing that:

This Division does not prevent the adducing of evidence of—

(a)   a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or

(b)   a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

The LPP documents: Prima Facie Privilege

20. The LPP documents were produced to the Tribunal for confidential examination pursuant to a direction made on 13 October 2020.

21. I have examined the documents produced as LPP documents and find that each of them is “a confidential communication made between [a] client and a lawyer … for the dominant purpose of the lawyer … providing legal advice to the client.”

22. Unless privilege has been waived, or is precluded by reason of misconduct, I find that the Applicant is not entitled to disclosure of the documents.

Waiver

23. The Applicant argues that the Respondent’s production to the Tribunal of the LPP documents comprises a waiver of the privilege because it was done without the Respondent making express objection to the production to the Tribunal pursuant to that direction.

24. This submission confuses waiver with the statutory hypothesis directed by clause 5(1) of Schedule 1 to the Act. What is excluded from the section 9(1) obligation is information that “would be privileged from production in legal proceedings on the ground of client legal privilege.” The hypothetical legal proceedings referred to in clause 5(1) are not the present proceedings in this Tribunal on review under the Act, and any actual “waiver” by permitting the Tribunal to inspect the documents for the purposes of its decision in this review is immaterial to what “would be” privileged “in legal proceedings” for the purposes of that clause. The statutory hypothesis directed by the clause – that the documents “would be” privileged – necessarily involves a hypothetical objection, sufficient for the purposes of s 118 or s 131A, in response to which privilege “would be” determined.

25. I reject this submission.

Misconduct Excluding Privilege

26. The Applicant argues that inferences should be drawn from some of the documents that have been produced, and from a mediation document, that the conduct in connection with which the LPP documents were created comprised “the improper use by Council of its powers, an improper purpose, impropriety, and a serious departure from right and proper conduct, all in relation to the allocation of costs” in the SMS. The Applicant contends that this occurred because the Council was on the one hand the consent authority for approval of the development application concerning the strata subdivision and on the other a party to the SMS negotiations as an owner of part of the subdivided property.

27. The documents relied on in support of the inference the Tribunal is invited to draw comprise (i) correspondence in which the Council expresses an opinion or takes a negotiating position in relation to the allocation of costs in drafts of the SMS, (ii) a statement in a 2020 mediation document that the SMS, providing a “detailed and comprehensive allocation of costs” had “been properly prepared by qualified professionals” and an alleged inconsistency between that statement and the Council’s failure to produce the material provided by the “professionals” said to comprise a deliberate frustration of the proceedings under the Government Information (Public Access) Act; and (iii) differences between the registered version, and putatively earlier draft versions, of the SMS with the result that the Council’s share of costs was less in the registered version than in the earlier drafts.

28. An allegation of conduct amounting to “fraud” (the Applicant’s word) is a serious one and should be fully particularised in advance, even in a context (such as Tribunal proceedings) where there are no pleadings. Regrettably this was not done in the present case, notwithstanding that the Applicant asserts that it was a foundation for and should have been discerned from the cross examination of Mr Wilson. Because of the administrative and consequently informal nature of Tribunal proceedings I would have been disposed to allow the Respondent to respond in more detail to the allegation, and for that purpose to require the Applicant to fully articulate and particularise it, were it not that I do not accept the submission even in the broad and somewhat diffuse terms in which it is advanced.

29. The temporal relationship between the grant of development approval and the negotiation of the SMS is not apparent. The Strata Plan was registered in October 2000 and the negotiations occurred in the period from December 1998 to September 2000. The time at which the Council discharged its duties as authority to approve the development application relating to the building does not appear from the materials, but it must have predated commencement of the construction of the building. There is no evidence that the grant and the negotiations were contemporaneous.

30. I do not find in any of the materials before the Tribunal grounds for inferring that the Council failed, though it should have done so, to have regard to its duties and obligations as approving authority at a time when it was engaged in negotiations relating to its position as owner of property affected by the SMS terms. The correspondence relied on the by the Applicant provides no such grounds. At most it shows that the Council was properly concerned about its financial position and, indirectly, the position of its ratepayers.

31. It seems very likely that the mediation document was produced to the Tribunal in breach of obligations of the parties to the mediation agreement. However, nothing turns on that question, as the passages relied on do not support any loss of privilege in other documents relating to the SMS. At most they amount to an assertion that in and before 2000 the SMS was produced by “qualified professionals.” They do not amount to an assertion that any documents relating to the activities of the professionals were in 2020 held by the Council. Even if it were relevant to the assertion of privilege, the claimed inconsistency between the mediation document and the evidence before the Tribunal is not made out.

32. The differences between the versions of the SMS, and the inferences pressed on the Tribunal as to the dates on which different versions were approved by the Council, do not in any discernable way bear on the issues of fraud, abuse of power or criminal misconduct relevant – under the Evidence Act or the common law – in a claim for privilege. I do not find it necessary to venture into the interesting legal question of the relationships between the statutory and common law rules.

Conclusion

33. I find that nothing in the materials supports the Applicant’s claims that Item 5(1) does not ground an exclusion from the Council’s section 9(1) obligations in relation to the LPP documents.

34. Some of the documents to which the Applicant sought access have been produced in the course of the proceedings and no further decision is necessary in respect of them.

35. The application is accordingly dismissed.

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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: 26 May 2021