Waite v Hornsby Shire Council

[2010] NSWADT 47

CITATION:	Waite v Hornsby Shire Council [2010] NSWADT 47
DIVISION:	General Division
PARTIES:	APPLICANT Peter Andrew Waite RESPONDENT Hornsby Shire Council
FILE NUMBER:	093061
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	3 September 2009
DATE OF DECISION:	15 February 2010
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Access to documents – 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 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Howell v Macquarie University [2008] NSWCA 26 Mann v Carnell (1999) 201 CLR 1McGuirk v University of New South Wales; University of New South Wales v McGuirk [2009] NSWCA 321 University of New South Wales v McGuirk [2006] NSWSC 132 Osland v Secretary to the Department of Justice [2008] HCA 37 Trade Practices Commission v Sterling (1979) 36 FLR 244
REPRESENTATION:	APPLICANT B S Woolf, solicitor RESPONDENT C T Drury, solicitor
ORDERS:	1The decision of the Council is affirmed in all respects except in relation to the following deletions: (a)GM Report 3/04 - the deletion above the heading ‘Conclusion’ on page 3 and the deletions on the bottom of page 4, (b)GM Report 7/00 - the first sentence of the deletion under the heading ‘Discussion’ on pages 1 to 2, and (c)GM Report 2/02 - the first sentence of the deletion at the bottom of page 1 2The decision of the Council in regard to the following deletions is set aside and remitted for reconsideration in accordance with these reasons for decision: (a)GM Report 3/04 - the deletion above the heading ‘Conclusion’ on page 3 and the deletions on the bottom of page 4, 1.GM Report 7/00 - the first sentence of the deletion under the heading ‘Discussion’ on pages 1 to 2, and 2.GM Report 2/02 - the first sentence of the deletion at the bottom of page 1.

REASONS FOR DECISION

1 The applicant, Mr Peter Waite (‘Mr Waite’) has sought review of a decision of the respondent, Hornsby Shire Council (‘the Council’) to refuse him access to a report, prepared by the General Manager of the Council for consideration by Council at its meeting of 10 March 2004. The report is identified as GM Report No. 3/04 (‘GM Report 3/04’). The Report is 4 pages in length and has 6 attachments to it. Attachment 1 and 3 are copies of 2 earlier reports of the General Manager (identified as GM Report No. 7/00 and GM Report No.2/02 respectively). Attachment 2 is a copy of submissions by Mr Waite and Attachment 4, 5 and 6 are copies of letters from Phillips Fox Lawyers to the Council dated 19 March 2003, 22 September 2002 and 7 November 2003: see paragraphs 20.5, 20.6 and 20.7 of the Council’s written submissions.

2 Mr Waite had sought access to GM Report 3/04 pursuant to section 17 of the Freedom of Information Act 1989 (‘the FOI Act’). The Council determined that the Report contained matter ‘that would be privileged from production in legal proceedings on the ground of legal professional privilege’ and it refused Mr Waite access to the entire document under section 25(1)(a) of the FOI Act on the grounds that it was an ‘exempt document’. An ‘exempt document’ is defined in section 6 of the FOI Act to mean ‘a document referred to in any one or more of the provisions of Schedule 1’. Included in this Schedule are those documents which contain matter to which legal professional privilege is attached: see clause 10 of Schedule 1 of the FOI Act. This decision of the Council was affirmed on internal review. It was this internal review decision for which Mr Waite sought external review by the Tribunal.

3 At the first planning meeting, by consent, the decision of the Council was remitted for further consideration pursuant to section 65 of the Administrative Decisions Tribunal Act 1997. In reconsidering its decision the Council determined to grant Mr Waite access to Attachment 2 of GM Report 3/04. It also determined to grant Mr Waite access to parts of GM Report 3/04 and parts of Attachments 1 and 3 (i.e. GM Report No. 7/00 and GM Report No. 2/02) of that Report. In respect to those parts of GM Report 3/04 and Attachment 2 and 3 and the entirety of Attachments 4, 5 and 6 the Council had refused access, Council determined that these were privileged in that they contained matter falling within the terms of clause 10 of Schedule 1 of the FOI Act. In accordance with section 25(4) of the FOI Act, the Council provided Mr Waite with a copy of every page of GM Report No 3/04 and its 6 Attachments with the exempt matter deleted. In many cases the contents of the entire page were deleted. It is the Council’s determination in respect of these deletions which is the subject of Mr Waite’s review application to the Tribunal.

Issues

4 There are 2 primary issues for determination in this application. These are:

(a) whether the deleted material is in fact exempt under the terms of clause 10 of Schedule 1 of the FOI Act (i.e. is privileged); and
(b) in the event it is found that the material is exempt, whether the Tribunal has a discretion to nevertheless grant access to this material. As explained below, since the decision of the Court of Appeal in McGuirk v University of New South Wales; University of New South Wales v McGuirk [2009] NSWCA 321 the Tribunal does not have any discretion where the material for which access has been refused is found to be privileged (i.e. falling within clause 10 of Schedule 1 of the FOI Act).

5 In its written submissions, the Council contended that letters written by Mr Waite to Council and attached to GM Report 2/02 were exempt under clause 13 of Schedule 1 of the FOI Act in that ‘production of this document may result in an action for breach of confidence’: see clause 13(a). In his written submissions, Mr Waite did not press his claim for access to these documents. Accordingly, I have not considered the Council’s decision to refuse Mr Waite access to these documents any further.

6 It is not disputed that in these proceedings the onus is on the Council to establish that its determination to refuse Mr Waite access to the deleted material is justified: see section 61 of the FOI Act.

Evidence

7 In support of his application Mr Waite filed a statement made by him and dated 28 July 2009. Written submissions were also filed on his behalf by his solicitor, Mr Woolf.

8 Mr Drury, solicitor, also filed written submissions on behalf of the Council. Attached to the submissions was a copy of the GM Report 3/04 to which Mr Waite had been granted access. In addition to this the Council provided the Tribunal, on a confidential basis, with a full copy of GM Report 3/04 and the 6 Attachments.

9 In his statement, Mr Waite provided a brief history as to the background to his FOI request. It would appear that in 1999 Mr Waite raised concerns about actions of then Councillors of the Council, Councillor Cardamatis and Pringle. He attended a meeting of Council in July 1999, in an endeavour to discuss these concerns in a meaningful way. Instead, he asserts, he was attacked and accused of ‘criminal acts’ by Councillor Cardamatis. These attacks he said were uncalled for and in no way restrained by other Councillors who were present at that time. Mr Waite made representations to the Mayor and the General Manager in regard to the conduct of Council and that of Councillor Cardamatis. In 2003, Mr Waite received a letter from Councillor Orr in which Councillor Orr acknowledged that the Council acted inappropriately during the July meeting and that Councillor Cardamatis was discussing issues not relevant to the issues that were then before the Council.

10 Mr Waite acknowledged that since 1997, he has made numerous submissions and FOI requests to Council. These he said all involved matters of which he held a ‘genuine concern’; namely ‘matters of administration, procedure, Councillors duties and compliance with code of conduct and Council finances.’

11 It would appear that Mr Waite sought access to GM Report 3/04 as a result of being provided with a copy of Council’s resolutions during its meeting on 10 March 2004. That resolution Mr Waite said referred to a ‘subsequent campaign of harassment’ by him.

12 The Report is entitled ‘Review of Previous Reports Regarding Mr Peter Waite.’ It has the word ‘CONFIDENTIAL’ stamped on every page and it is expressly stated to be a confidential report in accordance with section 10A(2)(g) of the Local Government Act 1993. Subsection 10A(1) enables a council or a committee of a council to close its meeting to the public for the purpose of discussing matters listed in subsection (2) of that section. Paragraph (g) refers to matters involving advice that would otherwise be privileged from production in legal proceedings on the grounds of legal professional privilege.

13 In its submissions the Council explained that legal advice sought and received by Council is communicated to the Council through a confidential report prepared by the General Manager to Council. It was in these circumstances that GM Report 3/04, GM Report 7/00, GM Report 2/02 came into existence.

Clause 10 exemption - legal principles

14 As I have mentioned, clause 10(1) of Schedule 1 of the FOI Act provides that 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.

15 It is not disputed that 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’: see 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 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [67] and Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.

16 In WorkCover Authority 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).’

17 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.’

18 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. Once a waiver of the confidential communication is established the client no longer has a right to resist a claim for production on the grounds of legal professional privilege.

19 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) …

(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) …

(f) ...

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

20 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.’

Consideration

21 As I have mentioned GM Report 3/04 is a report from the General Manager of the Council to the Council. It is a confidential communication but the relationship between the General Manager and the Council is not that of a lawyer/client. Accordingly, the communication although confidential does not of itself attract legal professional privilege. What is privileged is that part of the Report, which refers to or is an extraction of the confidential communication between Council and its legal advisers which came into existence for the dominant purpose of providing legal advice to the Council (i.e. the legal advice Council received from its lawyers): see category (d) as set out by Lockhart J in Sterling (supra). That part of the Report, which does not concern legal advice is not privileged and will be subject to production if those portions of the Report that are privileged can be severed from those portions which are not privileged (i.e. a copy of the Report being produced with the privileged communication deleted). Subsection 25(4) of the FOI Act is of similar effect.

22 In accordance with these principles the Council has provided Mr Waite with a copy of every page of the Report, including every page of the Attachments, with deletions. In some case the deletions are made to the entire page. However the basis on which the deletions were made by the Council was that they contained a privileged communication between the Council and its lawyers.

23 There are deletions to each of the 4 pages of the body of the Report.

24 Having regard to the content of the deletions I am satisfied that those deletions on page 1, 2, the deletion above the heading ‘Notice of Motion No.25/03 and the deletion below the heading ‘Conclusion’ on page 3 and the deletion at the top of page 4 are privileged in that each deletion is an extract of or a reference to information which was a confidential communication from the Council’s solicitor to the Council and which came into existence for the dominant purpose of legal advice. That is, these deletions concern the substance of legal advice provided to the Council by its solicitor and is privileged. The legal advice is that which is contained in one or more of the Attachments to the Report.

25 This leaves the deletion above the heading ‘Conclusion’ on page 3 and the deletions on page 4 after the 3rd Attachment. In my opinion, a portion of the deletion above the heading ‘Conclusion’ on page 3 and the entire deletion at the bottom of page 4 contain matters of fact, which are not privileged and would not disclose the substance of the legal advice Council had obtained. Even if I am incorrect in my opinion any claim of privilege in regard to these deletions has been waived. This waiver however, is limited to that which has been disclosed by the Council in its written submissions.

26 GM Report 7/00 is a 5 page report from the General Manager to the Council for its meeting on 12 April 2000. The Report is of a similar nature to GM Report 3/04. Attached to this Report is a document that is 7 pages long. Access to this attachment in its entirety was refused on the grounds it was privileged.

27 In its submissions the Council refers to the attachment as being legal advice received by Council from Phillips Fox Lawyers. I have examined the document and I am satisfied that it is without question a document that contains a confidential communication between Council’s lawyers and Council that came into existence for the dominant purpose of giving the Council legal advice. Accordingly, I find that the Attachment is an exempt document falling within clause 10 of Schedule 1 of the FOI Act.

28 I also find that the substance of the letter in its entirety is privileged and on this basis I find that section 25(4) of the FOI Act has limited, if any, application to the document. My only reservation relates to the formal parts of the document such as its date, its author and to whom it is addressed. This information, in my opinion is arguably not privileged. Even if it were to be found privileged, on the basis of the information that has been disclosed to Mr Waite, in my opinion, this information would amount to a waiver of these formal parts of the Attachment. On the basis of my other findings it is unnecessary to consider this any further.

29 Council contends that the deletions on pages 1, 2, 3 and 4 of GM Report 7/00 contain extracts from or relate to the legal advice that is the Attachment to the Report. Having regard to the contents of each deletion in the Report, with one reservation, I am satisfied that they are privileged in that each deletion is an extract of or a reference to the substance of the legal advice that is in the Attachment to the Report. My reservation relates to a portion of the first sentence of the deletion under the heading ‘Discussion’ on pages 1 to 2. My reservation is based on that part of the deletion that is purely factual and my reasons for the reservation are those I have identified above in regard to the formal parts of the Attachment.

30 Accordingly, with the exception of my reservations in regard to the first sentence of the deletion under the heading ‘Discussion’ on pages 1 to 2 and the formal parts of the Attachment, I find that each deletion to the body of GM Report 7/00 contains information that is exempt under clause 10 of Schedule 1 of the FOI Act.

Deletions in Attachment 3: GM Report 2/02

31 GM Report 2/02 is another report from the General Manager to the Council for its meeting on 10 April 2002. There are a number of Attachments to the Report, a description of which is provided at paragraph 20.4 of the Council’s written submissions. Otherwise, the Report is of a similar nature to GM Report 3/04 and 7/00.

32 GM Report 2/02 is 11 pages long and it is convenient to first deal with the 2 Attachments to the Report for which the Council has refused access in whole on the grounds they are privileged. They are described in the Council’s written submissions as being letters to the Council from Phillips Fox Lawyers dated 22 January 2002 (marked as Attachment 3) and 28 February 2002 (marked as Attachment 5) respectively: see paragraphs 20.4.3 and 20.4.5 of the Council’s written submissions.

33 I have examined each of the letters and I am satisfied that they are without question a confidential communication between Council’s lawyers and Council that came into existence for the dominant purpose of giving the Council legal advice. Accordingly, I find that each of the abovementioned Attachments is an exempt document falling within clause 10 of Schedule 1 of the FOI Act.

34 I also find that the substance of the letter in its entirety is privileged and on this basis I find that section 25(4) of the FOI Act has no application to the document. It should be noted that in making this finding, I have formed the view that Mr Waite would not wish to have a copy of the Attachments with the formal parts disclosed as he been provided with this information through the Council’s written submissions.

35 In regard to the body of GM Report 2/02 deletions were made to pages 1, 2, 3, 5. 6 (entire page), 7 (entire page), 8 (entire page), 9, 10 and 11.

36 Having regard to the content of the abovementioned deletions, with one exception, I am satisfied that each of the deletions contain information which is a confidential communication from the Council’s solicitor to the Council which came into existence for the dominant purpose of legal advice. That is, these deletions concern the substance of legal advice provided to the Council by its solicitor and is privileged.

37 The only exception is the first sentence of the deletion at the bottom of page 1 of the Report. That sentence in my opinion does not refer to the substance of legal advice given to the Council by its lawyers. In any event, even if I am incorrect in light of what has been disclosed to Mr Waite and that which is contained in the written submissions of the Council, in my opinion, has waived its right (if any) to make a claim of privilege in regard to the contents of this sentence.

Attachment 4, 5 and 6

38 As mentioned above Attachment 4, 5 and 6 to GM Report 3/04 are copies of letters from Phillips Fox Lawyers to the Council dated 19 March 2003, 22 September 2002 and 7 November 2003 respectively: see paragraphs 20.5, 20.6 and 20.7 of the Council’s written submissions.

39 I have examined each of the letters and I am satisfied that they are without question a confidential communication between Council’s lawyers and Council that came into existence for the dominant purpose of giving the Council legal advice. Accordingly, I find that each of the abovementioned Attachments are an exempt document falling within clause 10 of Schedule 1 of the FOI Act.

40 I also find that the substance of the letter in its entirety is privileged and on this basis I find that section 25(4) of the FOI Act has no application to the document. It should be noted that in making this finding, I have formed the view that Mr Waite would not wish to have a copy of the Attachments with the formal parts disclosed as he been provided with this information through the Council’s written submissions.

Conclusions in regard to deletions

41 For the reasons set out above, the Council has established that the deletions, other than those identified in the paragraph below, to GM Report 3/04 and its Attachments are exempt under clause 10 of Schedule 1 of the FOI Act.

42 The deletions for which it has failed to establish that they are exempt under this clause are the following:

(a) GM Report 3/04 - the deletion above the heading ‘Conclusion’ on page 3 and the deletions on the bottom of page 4,
(b)GM Report 7/00 - the first sentence of the deletion under the heading ‘Discussion’ on pages 1 to 2, and
( c) GM Report 2/02 - the first sentence of the deletion at the bottom of page 1.

43 In my opinion, however, the Council should be given an opportunity to reconsider its decision in regard to these deletions pursuant to section 63(3)(d) of the Administrative Decisions Tribunal Act 1997.

Residual discretion of the Tribunal

44 In University of New South Wales v McGuirk [2006] NSWSC 132 Nicholas J held that section 63 of the Administrative Decisions Tribunal Act 1997 provided the Tribunal with a discretion to order access to given to documents that were found to be exempt under the FOI Act if it determined that to do so is the correct and preferable decision with regard to the material before it. The discretion as described by Nicholas J has been referred to as the residual or override discretion.

45 On the basis of this decision, Mr Woolf, on behalf of Mr Waite submitted that in the event the Tribunal found the deletions to be exempt, the Tribunal should go on to exercise the discretion and order that Mr Waite be granted access to the deleted material.

46 Subsequent to the filing of these submissions in McGuirk v University of New South Wales; University of New South Wales v McGuirk [2009] NSWCA 321 the Court of Appeal considered this issue. Furthermore, Court of Appeal was required to consider whether a residual discretion (if any) applied where the exempt document was exempt on the grounds of legal professional privilege (i.e. clause 10 of Schedule 1 of the FOI Act). In regard to the latter at [32] and [33] Basten JA (with Ipp JA and McFarland JA agreeing) said the following:

’32 Because s 63(2) is limited to the exercise of functions conferred or imposed “by any relevant enactment” the power to waive legal professional privilege is not a power enjoyed by the Tribunal. A relevant enactment must be an Act, regulation, by-law, rule or ordinance: ADT Act, s 5 and Interpretation Act 1987 (NSW), s 21A, statutory rule . The University is a body corporate constituted under the University of New South Wales Act 1989 (NSW) (“the UNSW Act”), s 5. Where the University obtains advice from lawyers, its rights with respect to that advice will depend upon the general law, even if it is obtained for the exercise of its statutory functions: see Australian National University v Lewins (1996) 68 FCR 87 at 96-97 (Kiefel J), 101 (Lehane J); Australian National University v Burns (1982) 64 FLR 166 at 174 (Bowen CJ and Lockhart J); Griffith University v Tang [2005] HCA 7; 221 CLR 99 at [22] (Gleeson CJ), [79]-[81] (Gummow, Callinan and Heydon JJ), each case dealing with the phrase a “decision of an administrative character made … under an enactment” in the Administrative Decision (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) or the Judicial Review Act 1991 (Qld). As explained by Davies AJA in this Court, in a matter arising under the ADJR Act, namely Scharer v New South Wales [2001] NSWCA 360; 53 NSWLR 299 (in dissent) but in a passage quoted with apparent approval by Gleeson CJ in Tang at [18]):
“The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient.”
33 In the present case, there was no relevant grant of statutory authority. The power to waive privilege did not arise under any enactment. Accordingly, at least in respect of the exempt document in question, no power was conferred on the Tribunal by s 63(2) to waive any legal professional privilege as might remain extant.’

47 The essence of the findings of the Court of Appeal is that section 63 of the Administrative Decisions Tribunal Act 1997 does not confer any power on the Tribunal to waive an agency’s right to a claim legal professional over a document for which access is sought under the FOI Act.

Conclusions and Orders

48 For the reasons set out above, I am satisfied that, with the exception to the following deletions, the decision of the Council is the correct and preferred decision and should be affirmed:

(a)GM Report 3/04 - the deletion above the heading ‘Conclusion’ on page 3 and the deletions on the bottom of page 4,
(d)GM Report 7/00 - the first sentence of the deletion under the heading ‘Discussion’ on pages 1 to 2, and
(e)GM Report 2/02 - the first sentence of the deletion at the bottom of page 1.

49 For the reasons set out above, I am not satisfied that the decision of the Council in regard to the following deletions is the correct and preferred decision:

(a)GM Report 3/04 - the deletion above the heading ‘Conclusion’ on page 3 and the deletions on the bottom of page 4,
(f)GM Report 7/00 - the first sentence of the deletion under the heading ‘Discussion’ on pages 1 to 2, and
(g)GM Report 2/02 - the first sentence of the deletion at the bottom of page 1.

50 Accordingly, the decision of the Council in regard to the following deletions is set aside and remitted for reconsideration in accordance with these reasons for decision:

(a) GM Report 3/04 - the deletion above the heading ‘Conclusion’ on page 3 and the deletions on the bottom of page 4,
(b) GM Report 7/00 - the first sentence of the deletion under the heading ‘Discussion’ on pages 1 to 2, and
(c) GM Report 2/02 - the first sentence of the deletion at the bottom of page 1.