Waite v Hornsby Shire Council

[2010] NSWADT 280

CITATION:	Waite v Hornsby Shire Council [2010] NSWADT 280
DIVISION:	General Division
PARTIES:	APPLICANT Peter Andrew Waite RESPONDENT Hornsby Shire Council
FILE NUMBER:	103024
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	17 June 2010
DATE OF DECISION:	25 November 2010
BEFORE:	Higgins S - Deputy President
CATCHWORDS:	Access to Documents - confidential material - legal professional privilege
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Local Government Act 1993
CASES CITED:	Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Howell v Macquarie University [2008] NSWCA 26 Mann v Carnell (1999) 201 CLR 1 Osland v Secretary to the Department of Justice [2008] HCA 37 Trade Practices Commission v Sterling (1979) 36 FLR 244 Workcover Authority (NSW)(General Manager) v Law Society of New South Wales (2006) 65 NSWLR 502
REPRESENTATION:	APPLICANT B Woolf, solicitor RESPONDENT I Woodward, solicitor
ORDERS:	The decision of the Council is varied to a decision that Mr Waite be provided, in accordance with the findings in these reasons for decision, with a copy of the audio recording of the confidential discussions about `Outstanding Sullage Issues` with the exempt matter deleted.

1 This is an application by Peter Andrew Waite (Mr Waite) seeking review of a decision of the Hornsby Shire Council (the Council) to refuse him access to a copy of the audio recording of a discussion between Councillors and Council staff, during the Council meeting of 12 August 2009, about ‘Outstanding Sullage Issues’. The discussion occurred following a motion, moved by Councillor Russell at the meeting. The Council resolved to permit Councillor Russell to raise the issue and also resolved to hold its discussions in regard to this issue in confidence.

2 Mr Waite’s request for access was made pursuant to the Freedom of Information Act 1989 (the FOI Act) and Council’s determination to refuse him access was also made pursuant to that Act.

3 In dealing with Mr Waite’s FOI request, the Council mistakenly provided Mr Waite with a copy of the audio recording of the entire Council meeting of that day (i.e. including the confidential discussions about the ‘Outstanding Sullage Issues’). At the same time the Council determined that the audio recording of the discussions held in confidence was exempt under clause 10 of Schedule 1 of the FOI Act. That is, it had determined that Mr Waite be refused access to a copy of this part of the audio recording on the grounds that it contained information to which legal professional privilege attached.

4 Mr Waite did ultimately return the copy of the audio recording he had been given by mistake. The Council substituted this recording with a copy of the audio recording of Council’s meeting of that day, with the discussions about the ‘Outstanding Sullage Issues’ being deleted.

5 At the initial planning meeting, on 19 February 2010, by consent, I made an order remitting Mr Waite’s application to the Council for further consideration. At the next planning meeting, on 29 March 2010, Ms Abicair (Manager, Administration Services Branch of the Council) and Mr Bensley (Executive Manager, Corporate and Community Division of the Council) advised that the Council had reconsidered its decision and had determined to affirm its earlier decision that the audio recording of Council’s discussions, held in confidence, about the ‘Outstanding Sullage Issues’, was exempt on the grounds that it was privileged. Mr Waite, being dissatisfied with Council’s decision, pressed his application for review. Accordingly, by consent, I made orders for the filing and serving of evidence and submissions and requested Council to provide the Tribunal, on a confidential basis, with a copy of the relevant section of the audio recording that was in dispute. I also made an order, by consent, that this application could appropriately be determined on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 (the ADT Act).

6 The Council filed its written submissions on 4 May 2010. The Council also provided the Tribunal, on a confidential basis, with a copy of the transcript of the Council’s discussions about the ‘Outstanding Sullage Issues’.

7 On 14 May 2010, Mr Bruce Woolf of Woolf Associates Solicitors, filed written submissions on behalf of Mr Waite.

8 On 28 May 2010, Mr Ian Woodward of Storey and Gough Lawyers, filed and served additional written submissions on behalf of the Council. Attached to those submissions was a short statement of Mr Robert Stevens, Executive Manager, Environment Division of the Council. Mr Woolf, on behalf of Mr Waite, wrote to the Tribunal on 11 June 2010 objecting to the material filed by Mr Woodward. The basis of the objection was that the additional submissions did not cover matters in reply to the submissions filed on behalf of Mr Waite. While this may be correct, in my opinion, this being a merit review application, the Tribunal should have regard to all relevant material, subject to the parties being afforded procedural fairness. The submissions of Mr Woodward and the statement of Mr Stevens are both relevant to the matters in issue in this application and there is no evident prejudice to Mr Waite, as Mr Woolf also provided a response to this material in his additional submissions.

Issue

9 The only issue for determination in this application is whether the discussions, held in confidence, about the ‘Outstanding Sullage Issues’, during Council’s meeting of 12 August 2009, contain information that is exempt under clause 10 of Schedule 1 of the FOI Act.

Clause 10 exemption

10 Clause 10 of Schedule 1 of the FOI Act provides:

‘10 Documents subject to legal professional privilege

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.’

11 Legal professional privilege is a common law right in that it is ‘a rule of substantive law which enables a person to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings’: Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 (at [9]) per Gleeson CJ, Gaudron, Gummow and Hayne JJ; see also Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.

12 Communications made for the dominant purpose of legal advice is commonly referred to as advice privilege and communications for the dominant purpose to aid in the conduct of litigation (including anticipated litigation) is commonly referred to as litigation privilege.

13 In Workcover Authority (NSW)(General Manager) v Law Society of New South Wales (2006) 65 NSWLR 502 at [68], McColl JA explained the rationale the privilege as follows:

‘68. The rationale of legal professional privilege is “that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline”: Grant v Downs (at 685); Attorney-General (NT) v Maurice (at 487); see also Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 per Mason J (at 74), per Deane J (at 114), per Dawson J (at 128).’

14 At [73] McColl JA said:

‘73. Once it is established that the legal practitioner was acting in the requisite capacity, a confidential communication will attract privilege even if it contains extraneous matter as long as it was prepared for the dominant purpose of giving legal advice.’

15 Any privilege that does attach to a confidential communication is that of the client, who can expressly or by implication waive that privilege: see Osland v Secretary to the Department of Justice [2008] HCA 37 at [45] and Mann v Carnell (1999) 201 CLR 1. An express waiver is where a client expressly discloses, to a third party, the advice or the substance of advice received from his/her/its lawyers. An implied waiver arises in circumstances where the conduct of the client is inconsistent ‘with the maintenance of the confidentiality which the privilege is intended to protect.’

16 In Trade Practices Commission v Sterling (1979) 36 FLR 244 at pp. 245–246, Lockhart J provided a summary of circumstances where legal professional privilege will extend to a document. These circumstances (omitting citations) included the following:

‘(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them.

(b) …

(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance.

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf.

(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence.

(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action….

(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.’

17 Whether information in a document is privileged is ultimately a question of fact. In Howell v Macquarie University [2008] NSWCA 26 at [48], Campbell JA said the clause 10 exemption, ‘should be construed without any prior inclination to construe it narrowly, nor any prior inclination to construe it broadly’. At [54], His Honour went on to explain how the Tribunal was to assess the evidence where an agency relies on the clause 10 exemption:

‘The task of the Tribunal, in reviewing a claim of legal professional privilege made by an agency, is to make up its own mind, on the basis of such information as it has available to it, about whether the matter contained in a document has the characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege.’

18 Section 10 of the Local Government Act 1993 (the LG Act) prescribes who can attend a general meeting of a local council. It relevantly provides as follows:

‘10 Who is entitled to attend meetings?

(1) Except as provided by this Part:

(a) everyone is entitled to attend a meeting of the council and those of its committees of which all the members are councillors, and

(b) a council must ensure that all meetings of the council and of such committees are open to the public.

(2) However, a person (whether a councillor or another person) is not entitled to be present at a meeting of the council or of such a committee if expelled from the meeting:

(a) by a resolution of the meeting, or

(b) by the person presiding at the meeting if the council has, by resolution, authorised the person presiding to exercise the power of expulsion.

(3) A person may be expelled from a meeting only on the grounds specified in, or in the circumstances prescribed by, the regulations.’

19 Section 10A of the LG Act sets out which parts of a general meeting of a local council is to be closed:

‘ 10A Which parts of a meeting can be closed to the public?

(1) A council, or a committee of the council of which all the members are councillors, may close to the public so much of its meeting as comprises:

(a) the discussion of any of the matters listed in subclause (2), or

(b) the receipt or discussion of any of the information so listed.

(2) The matters and information are the following:

(a) personnel matters concerning particular individuals (other than councillors),

(b) the personal hardship of any resident or ratepayer,

(c) information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business,

(d) commercial information of a confidential nature that would, if disclosed:

(i) prejudice the commercial position of the person who supplied it, or

(ii) confer a commercial advantage on a competitor of the council, or

(iii) reveal a trade secret,

(e) information that would, if disclosed, prejudice the maintenance of law,

(f) matters affecting the security of the council, councillors, council staff or council property,

(g) advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege,

(h) information concerning the nature and location of a place or an item of Aboriginal significance on community land.


(3) A council, or a committee of the council of which all the members are councillors, may also close to the public so much of its meeting as comprises a motion to close another part of the meeting to the public.

(4) A council, or a committee of a council, may allow members of the public to make representations to or at a meeting, before any part of the meeting is closed to the public, as to whether that part of the meeting should be closed.’

The onus of proof

20 Section 61 of the FOI Act provides that the onus is on the Council to establish that its determination, the subject of review, is justified.

The Evidence

21 In regard to the ‘Outstanding Sullage Issues’, the published minutes of Council’s meeting read as follows:

‘CONFIDENTIAL ITEMS

…

THAT Council move into confidential session to further discuss Item 38, for the reason given below the item.

RESOLVED ON THE MOTION OF COUNCILLOR BERMAN, seconded by COUNCILLOR BROWNE,

THAT Council move out of confidential session.

38 Outstanding Sullage Issues (F2004/08674)

Discussion of part of this item was considered confidential under s10a (2) (g) of the Local Government Act, 1993. It relates to current and pending litigation and is considered to be privileged from production in legal proceedings on the ground of legal professional privilege.

RESOLVED ON THE MOTION OF COUNCILLOR RUSSELL, seconded by COUNCILLOR BROWNE,

THAT Council establish a Councillor Working Party to review the history and content of sullage complaints across the Shire.’

22 In his statement, Mr Stevens said that prior to the Council meeting he and the General Manager had been in receipt of verbal advice from the Council’s solicitors in regard to the current status of legal proceedings ‘relating to a sullage debt of a Brooklyn resident.’ He went on to say that ‘During the confidential session of the 12 August 2009 Meeting, this advice assisted in responding to questions and comments from Councillors about the matter.’

23 As I have mentioned, the Tribunal was provided, on a confidential basis, with a copy of a transcript of the confidential discussions in regard to the ‘Outstanding Sullage Issues’. I have read and considered the content of this document.

Contentions of the parties

24 In its initial submissions the Council acknowledged that the audio recording of the confidential session did not include discussion of specific advice or communications between Council and its legal representatives. It went on to say that the audio recording did however ‘include discussion of pending litigation by Council and the impacts of certain actions in respect of that pending litigation.’ The submissions went on to say that if the audio recording of the confidential session were to be released the:

‘… [information] may jeopardise Council’s ability to pursue its chosen course of legal action. If the information was divulged to any of the persons involved in the litigation, it is conceivable that attempts may be made by such persons to influence Council prior to litigation commencing, and/or to counteract or impede evidence on which Council intends to rely in progressing the matter through the courts. Any of these actions could limit Council’s ability to achieve a satisfactory outcome. In addition, the pending litigation relates to not just one individual case, but several similar and related cases.’

25 The Council’s submissions went on to argue why confidential communications between Councillors and Council staff should remain confidential. It was submitted that the discussions in question had a direct relationship with existing litigation and also pending litigation. It was submitted that ‘disclosure of exchanges in respect of the conduct of litigation or the evidentiary material to be presented in litigation would not be in the public interest.’ The submission concluded by stating:

‘… [the] public interest in this matter must be dominated by protecting Council’s rights to legitimately pursue outstanding sullage debts. The release to the public of discussions regarding the litigation process could jeopardise Council’s ability to achieve the best possible outcome for Council. The disclosure of private exchanges between Councillors and also between Councillors and staff in confidential session of Council would not serve the public interest in obtaining a satisfactory result for Council.’

26 In his submissions on behalf of Mr Waite, Mr Woolf contended that the material provided by the Council was not sufficient to establish that the confidential discussions of the Councillors did in fact fall within the terms of clause 10 of Schedule 1 of the FOI Act (i.e. was privileged). Mr Woolf contended that if the Tribunal were to find that the discussions held in confidence were privileged, this privilege had been waived in a letter dated 24 February 2010 from the Mayor, Councillor Berman, to Mr Tom Richmond O.A.M., J.P. That letter relevantly said the following:

‘I understand your concerns relating to the ongoing sullage issue, and confirm that Council continues to consider its position regarding the matters that are not yet settled. You should be aware that I supported moves by “Cr Russell and others” to “remove the matter (i.e. sullage disputes) from the courts and re-examine it”. Indeed on each occasion I asked Councillors to consider this previously it was not supported by any other Councillor.

As one Councillor said recently at a Council Meeting when discussing this issue, if the residents’ claims are proven to be true, there is potentially a case of fraud having been committed by either a Council officer or a contractor working on behalf of Council. Council believes adequate evidence is yet to be provided to prove such claims.”

27 In this regard Mr Woolf also referred to an email Mr Waite received from Councillor Russell, on 13 August 2009. In that email Councillor Russell said: ‘I was successful in having a committee formed to investigate the charges however I was not able to hold the legal proceedings at this stage.’

28 In his submissions in reply, Mr Woodward contended that the Mayor’s letter (dated some six months after the Council meeting) could not constitute a waiver as it did not specifically refer to the meeting in question. He also contended that Councillor Russell’s email did not constitute a waiver. Mr Woodward went on to say that the tape recording of the confidential session of Council’s meeting was privileged because Council officers were informing Councillors about the status of existing legal proceedings, as previously advised by Council’s solicitors. He said that even though this was not a direct communication between the Council and the legal representatives, it was nevertheless subject to legal professional privilege and therefore exempt on the common law principles.

Consideration

29 In my opinion, the fact that the Council resolves that discussions be held in confidence by reason of paragraph 10A(2)(g) of the LG Act is not determinative of the matter in issue (i.e. whether the audio recording of those discussions is privileged). Nor, as suggested by the Council in its initial submissions is it a question of determining where the public interest lies. What is required is a determination as to whether, having regard to the relevant legal principles, the audio recording of the discussions, held in confidence, contains information to which legal professional privilege attaches.

30 As mentioned above, legal professional privilege arises from the relationship between a client and his/her/its legal adviser and through this relationship privilege is attached to any confidential communications that came into existence for the dominant purpose of obtaining or receiving legal advice. The Council has acknowledged that the confidential discussions the subject of this application are not discussions between the Council and its solicitors. Nevertheless, it contends that as the confidential discussions were about the status of existing legal proceedings, as advised by its solicitors, and on this basis these discussions are privileged.

31 In my opinion, only a portion of the confidential discussions can be described as being about existing legal proceedings. These discussions are found on the following pages of the confidential transcript:

- Pages 1, 2, 3 and 4

- Page 5, line 1 and 2 of what is said by the first speaker

- Page 6, what is said by the third and fourth speaker on this page

- Page 9, what is said by the seventh speaker on this page

32 That these pages of the confidential transcript contain discussions about existing legal proceedings does not of itself lead to a conclusion that these discussions are privileged. What must be shown is that the discussions concerned legal advice the Council had obtained, or was seeking from its solicitors in regard to that litigation (see paragraph (g) of the examples given by Lockhart J in Sterling (supra)). Having regard to the content of the confidential transcript of these discussions about the existing legal proceedings, I find that the discussions, as set out on the pages referred to above, do contain matter of this nature and is therefore privileged and falls within clause 10 of Schedule 1 of the FOI Act.

33 I also find that the Mayor’s letter of 24 February 2010 was not a waiver of that privilege. Leaving aside the question as to whether the Mayor alone can waive privilege vested in the Council, in my opinion the letter cannot be construed to be a disclosure of the substance of the legal advice as reflected in the confidential discussions of Council on 12 August 2009. I make a similar finding in regard to the email Councillor Russell sent to Mr Waite on 13 August 2009. His email does no more than report on the outcome of the meeting.

34 Accordingly, the audio recording of Council’s discussions, held in confidence, is an ‘exempt document’ as defined in section 6 of the FOI Act as it contains ‘exempt matter’. In this application the ‘exempt matter’ is that part of the audio recording which corresponds to the abovementioned pages of the confidential transcript. This matter being exempt as it falls within clause 10 of Schedule 1 of the FOI Act.

35 As the entire audio recording of the confidential discussions did not contain matter to which legal professional privilege was attached, it is necessary to consider the requirements of subsection 25(4) of the FOI Act. This subsection requires an agency to provide the FOI applicant with a copy of the document for which access was sought with the exempt matter deleted, if it is practical to do so and if it appears to the agency that the FOI applicant would wish to have such a copy. In my opinion, it would be practical to provide Mr Waite with a copy of the audio recording of the confidential discussions with the exempt matter deleted. Alternatively, subject to the agreement between the parties, it may be sufficient if Mr Waite were to be given a copy of the confidential transcript of the discussions with the abovementioned pages, or parts thereof, being deleted.

36 In light of my findings, the appropriate order is to vary the decision of the Council to a decision that Mr Waite be provided, in accordance with the findings in these reasons for decision, with a copy of the audio recording of the confidential discussions about ‘Outstanding Sullage Issues’ with the exempt matter deleted.