Waite v Hornsby Shire Council

[2007] NSWADT 265

CITATION:	Waite v Hornsby Shire Council [2007] NSWADT 265
DIVISION:	General Division
PARTIES:	APPLICANT Peter Waite RESPONDENT Hornsby Shire Council
FILE NUMBER:	073051
HEARING DATES:	08/06/2007
SUBMISSIONS CLOSED:	8 June 2007
DATE OF DECISION:	16 November 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979 Freedom of Information Act 1982 (Vic) Freedom of Information Act 1989 Land Acquisition (Just Terms Compensation) Act 1991
CASES CITED:	Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 137 ALR 28 at 34 Ashfield Municipal Council v Roads and Traffic Authority of NSW [2004] NSWSC 917 Benecke v National Australia Bank Bennett v The Chief Executive Officer, Customs (2003) 77 ALD 375; [2003] SCA 0053 Cianfrano v Director General, Department of Commerce & Anor (No.2) [2006] NSWADT Cianfrano v Director-General, Attorney General’s Department (No.2) [2007] NSWADT 231; Cianfrano v Director-General, Premier’s Department [2007] NSWADT 216; Esso Australia Resources Ltd v SCCT (1999) 2001 CLR 49; 168 ALR 123 Grant v Downs (1976) 135 CLR 674, 11 ALR 577 Howell v Macquarie University (No.2) [2007] NSWADT 227; Howell v Macquarie University (No.2) GD [2007] NSWADT 51 Mangoplah Pastoral Co. Pty Ltd v Great Southern Energy [1999] NSWADT 93 Mann v Carnell (1999) 2001 CLR 1; 168 ALR 86 New South Wales University v Gerard Michael McGuirk [2006] NSWSC 1362 Secretary, Department of Justice v Osland [2007] VSCA 96
REPRESENTATION:	In person Mr Lazarus, barrister
ORDERS:	1. The Council’s decision in regard to the Advice of Mr T Robertson SC, dated 1 February 2006, is varied by granting Mr Waite access to the following additional paragraphs or part paragraphs of the Advice:; - first 5 paragraphs of paragraph 6;; - paragraph 14; ; -paragraph 16, other than the last sentence;; -paragraph 33, other than the penultimate sentence; ; -and paragraphs 48 to 50.; 2. The Council’s decision in regard to the Instructions to Mr T Robertson SC for the purpose of the Advice, dated 1 February 2006, is set aside and remitted pursuant to s.63(3)(d) of the ADT Act.

Introduction

1 This is an application by Mr Waite seeking review of a decision of the Hornsby Shire Council (‘the Council’) pursuant to the Freedom of Information Act 1989 (‘the Act’) to refuse him access to documents he had requested. Mr Waite had initially sought access to a number of documents but during the course of planning meetings Mr Waite only pressed his application in respect to one category of documents; namely:

(a) the opinion, or legal advice, of Mr T. Robertson SC in regard to the Council’s acquisition of the CSR Quarry as set out in his memorandum of advice dated 1 February 2006 (‘the Advice’); and


(b) the instructions that were provided to Mr T. Robertson SC by email (‘the Instructions’).

2 Mr Waite, a resident of Hornsby Shire, and other residents in the Shire have expressed grave concerns about Council’s acquisition of the Quarry from CSR Limited in 2003. Mr Waite was supported in his application by many of these residents. The residents concerns are about the manner in which the acquisition was made and how the land was valued. The Valuer General had valued the land at more than $25 million and this was the price paid by Council for the land. A consequence of the acquisition was that Council was required to increase the annual rates for rate-payers. In mid 2005, Council had instructed its solicitors to seek legal advice from senior counsel as to possible avenues of appeal from the Valuer General’s determination. The Advice is as a result of those instructions and subsequent instructions in regard to the process of acquisition. The Council has published the Advice, in part, on its website. That which is published relates to the acquisition process and this is what was provided to Mr Waite in response to his FOI request. The Council determined to provide Mr Waite with a copy of the Advice with those paragraphs that are not included in the published version of the Advice deleted: see s.25(4) of the FOI Act. The grounds on which the Council refused Mr Waite access to the deleted paragraphs of the Advice was that these ‘contained matter that would be privileged from production in legal proceedings on the ground of legal professional privilege’ and was thereby an exempt document under cl.10 of Schedule 1 of the FOI Act. An agency can refuse an FOI applicant access to a document it holds on the grounds that it is exempt: see s.25(1)(a) of the FOI Act.

3 It is Mr Waite’s contention that privilege over the whole report has been waived by the publication of part of the Advice and it was otherwise in the public interest that the whole of the Advice is disclosed.

4 The Council’s position in regard to the Instructions was that it did not hold any documents that fell within Mr Waite’s FOI request in that regard. That is, it did not hold any emails. However, it provided Mr Waite with access to the letter written by Council on 26 May 2005 to its solicitors, Storey & Gough, instructing them to brief senior counsel. This, the Council said, was the only document it held in regard to instructions to senior counsel. Mr Waite contends that this is not sufficient compliance with the FOI Act as there are obviously more documents held by the Council which fall within the description of Instructions to senior counsel.

5 The FOI Act gives every person a legally enforceable right to be given access to an agency’s document; see s.16(1) of the FOI Act. That right, however, is subject to the provision of that Act.

6 On receipt of an FOI request an agency is required to determine whether to grant or refuse access to the documents sought: see s.24(1)(a) of the FOI Act.

7 The grounds on which an agency is able to refuse access to a document is set out in s.25 of the FOI Act. One such ground is where the document requested is an ‘exempt document’: see s.25(1)(a) of the FOI Act. An ‘exempt document’ is defined in s.6 of the Act to include a document referred to in one or more of the provisions in Schedule 1 of the Act. One such provision is cl.10, which relevantly 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.’

8 A failure by an agency to address all documents in its possession that fall within an FOI request has been held to be a refusal to grant access to a document under s.24(2) of the FOI Act: see Cianfrano v Director General, Department of Commerce & Anor (No.2) [2006] NSWADT 195 at [65]. That is, a deemed refusal to grant access to the documents requested and therefore a decision reviewable by the tribunal: see s53 FOI Act and s38 Administrative Decisions Tribunal Act 1997 (‘the ADT Act’).

Issues

9 There are primarily two issues for determination in this application. These are:

(a) whether the privilege in the deleted paragraphs of the Advice has been waived and if it has not been waived whether the correct and preferred decision is to release the document in whole (‘the override discretion’); and


(b) whether the Council has adequately searched for documents in regard to the Instructions.

(a) Legal principles

10 The purpose of legal professional privilege is to promote the public interest in the administration of justice by encouraging full and frank disclosure of information by the client through his or her legal adviser: see Grant v Downs (1976) 135 CLR 674, 11 ALR 577. The test for privilege is whether the communication between a client and his or her legal advisers were confidential and came into existence for the dominant purpose of giving or receiving legal advice or for use in existing or anticipated litigation: see Esso Australia Resources Ltd v FCT (1999) 2001 CLR 49; 168 ALR 123.

11 There is no dispute that the Advice was a confidential communication from Mr T. Robertson SC (as the Council’s legal adviser) to the Council (as client) and that it came into existence for the dominant purpose of giving legal advice and is thereby protected from disclosure on the grounds of legal professional privilege, unless that privilege has been waived.

12 It has been accepted that the applicable law for determining whether a document is exempt under cl.10 of Schedule 1 of the FOI Act is the common law.

13 The onus of establishing that a document which is claimed by an agency to be exempt from release under the FOI Act rests on the agency; in this application the Council: see s.61 of the FOI Act.

14 It is the client who has the right to claim the privilege and it is the client who can waive the privilege, either expressly or impliedly, and once waived the right to claim privilege is lost: see Mann v Carnell (1999) 2001 CLR 1; 168 ALR 86 at [28] & [29] per Gleeson CJ, Gaudron, Gamma and Callinan JJ. In these paragraphs their Honours said:

[28] … Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which affects a waiver of the privilege.


…


[29] Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”. This means that the law recognises the inconsistency to determine its consequences, even though such consequences may not reflect the subjective intention of a party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon privilege. She may not have even turned her mind to the question. However, her intention was inconsistent with the makings of the confidentiality of the communication. What brings about the waiver is inconsistency, which the court, where necessary informed by considerations of fairness, perceived, between the conduct of the client and the maintenance of the confidentiality; not some overriding principle of fairness operating at large.


…

15 At [44] their Honours went on to observe:

[44] Disclosure by client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client’s actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with confidentiality which the privilege serves to protect.

16 In Mann v Carnell, the ACT Chief Minister conveyed the terms of legal advice, provided to the government on a confidential basis, to an independent member of the legislative assembly who had received representations from Dr Mann in regard to litigation he had initiated against the ACT government. The advice was expressly stated to have been provided to the independent member subject to confidentiality. It was provided to the independent member so that he could consider the reasonableness of the ACT government’s settlement of Dr Mann’s litigation. The majority of the High Court held that the Chief Minister’s conduct did not amount to a waiver of the privilege as it was provided on the understanding that the independent member was not at liberty to communicate the advice any further. The majority of the High Court also observed that had the Chief Minister given the advice to the independent member on the basis that he was at liberty to show it to Dr Mann, then this would have been a waiver of the privilege.

17 In Bennett v The Chief Executive Officer, Australian Customs Service (2004) 210 ALR 220; [2004] FCAFC 237 the Full Federal Court (Tamberlin, Emmett and Gyles JJ) considered whether the disclosure of the conclusions of legal advice obtained by the Australian Customs Service (‘ACS’) amounted to a waiver of the legal advice in question. The solicitors for ACS had written to Mr Bennett’s solicitors in which they set out the legal position of ACS, as advised by the solicitors, in regard to litigation that Mr Bennett had undertaken against the Service. Mr Bennett then sought access to the advice pursuant to the Commonwealth Freedom of Information Act 1982 (‘the FOI Act (Cth)’). ACS refused access to the advice on the grounds that it was an exempt document because it was subject to legal professional privilege, see s.42 of the FOI Act (Cth). This decision was affirmed by Administrative Appeals Tribunal (‘AAT’). Mr Bennett appealed to the Federal Court and his appeal was dismissed at first instance: see Bennett v The Chief Executive Officer, Australian Customs Service (2003) 77 ALD 375; [2003] FCA 53. On appeal to the Full Federal Court, Mr Bennett was successful in arguing that ACS had waived privilege in the advice to the extent the advice related to the conclusions that were cited in the letter from the ACS: see per Tamberlin J at [6] & [17] and Gyles J at [65].

18 Both Tamberlin and Gyles JJ held that the applicable principles for waiver, in the context of a claim for privilege and the communication of legal advice to a third party, were those set out by the High Court in Mann v Carnell (supra). These principles they held did not displace the principles set out in earlier decisions in regard to the communication of the ‘substance’ of legal advice to a third party. At [7] Tamberlin J cited the following passage from a decision of Kirby J in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 137 ALR 28 at 34:

‘I agree that a mere reference to the existence of legal advice would not amount to a waiver of its contents. … But at least in respect to the substance of the legal advice supporting Ampolex’s assertion about the correct ratio, which is in contest here, it is strongly arguable that the public reference to the supporting legal advice waived the privilege as to the precise content of the legal advice on that point .…’

19 What was meant by ‘the substance’ and ‘effect’ of the advice had been considered by Rolfe J at first instance: Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12; 20 ACSR 637 at (19). His Honour said:

‘In my opinion the substance of the advice may well be disclosed if the ultimate conclusion, without the supporting reasoning process is revealed. At that stage there has been, in my opinion, a disclosure of the substance of the advice, i.e. what the advice is. Further the ultimate conclusion, whilst it may be a “result” or “consequence” of the reasoning is more than that: in its own right it is the essence or vital part of the advice. …’

20 This meaning was also cited with approval by Tamberlin J at [8].

21 At [64] Gyles J cited with approval the abovementioned decisions in Ampolex and other decisions. His Honour then went on to say at [65]:

‘… The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion. The primary judge was in error in drawing a distinction between conclusion and reasoning in the context of such a disclosure.’

22 In a recent decision of the Victorian Supreme Court the Court held that the above general rule as set out by Gyles J was not supported by the authorities: see Secretary, Department of Justice v Osland [2007] VSCA 96 per Maxwell P at [42]. His Honour went on to give examples where courts have held that privilege has been waived by disclosure of the existence and conclusion of legal advice. These, His Honour pointed out were cases where a person, in the course of litigation, had disclosed portions of legal advice he/she had received in order to advance his/her position in the litigation. In those circumstances, it was held to be ‘unfair’ not to disclose the whole advice. On the other hand, ‘the test of inconsistency is well capable of accommodating the notion that, in appropriate circumstances, the privilege holder should be able to disclose publicly that it is acting on advice and what the substance of that advice is without being held to have waived the privilege in the advice.’: see at [51].

23 In Bennett (supra), at [14] Tamberlin J stated the rule in respect to partial disclosure of a legal advice more narrowly than Gyles J. His Honour said as follows:

‘Disclosure of one conclusion but not others in an advice does not necessarily amount to a waiver in respect of the non-disclosed conclusions. However, if the conclusions and reasoning are so interconnected that they cannot be separated or isolated, then it may be that the whole of the advice on which those conclusions are based, must be considered to have been waived.’

24 The decision of the Full Federal Court in Bennett (supra) was followed by Barrett J in Ashfield Municipal Council v Roads and Traffic Authority of NSW [2004] NSWSC 917. The facts in that case were similar to those in Bennett in that Ashfield Municipal Council had disclosed in correspondence with the RTA that it had obtained a detailed opinion from Mr T F Roberson SC and then cited verbatim the conclusion of that advice. The letter also said that in making reference to the advice, Council was not waiving privilege in respect to the written advice. Barrett J found that notwithstanding the Council’s intention of not waiving privilege, that privilege had been waived: see at [23]. In reaching his findings His Honour applied the abovementioned principles set out in Mann v Carnell (at [11] & [12]). In regard to the application of those principles His Honour said at [13]:

‘There is reference in the passage I have just quoted to the need for an objective inquiry into the nature of the consent, with subjective intentions put to one side and with the inquiry “informed by considerations of fairness” where necessary.’

(b) Evidence

25 The circumstances which led to the Advice and its subsequent partial disclosure are not disputed and in summary they are as follows:

(a) in 2001, CSR Limited, the then owner of the Hornsby Quarry, served a notice on Council, pursuant to s.24 of the Environmental Planning Assessment Act 1979. The issue of the notice had the effect of requiring the Council to acquire the land and its acquisition was governed by the provisions of the Land Acquisition (Just Terms Compensation) Act 1991. Upon taking ownership of the property, Council requested the Valuer General to determine the compensation payable to CSR Limited on the basis that it was compulsorily acquired by the Council. The Valuer General made a determination, based on the market value, that the value of the land was more than $25 million;


(b) between 2001 and 2003, three sets of legal proceedings were commenced in relation to the acquisition. CSR Limited sued the Council to compel it to acquire the land, Council then sued the Valuer General to set aside his determination and CSR Limited sued Council to compel it to pay the sum determined by the Valuer General. Each case was settled before trial and on 30 January 2004 the Council made a payment of $23,965,741.00 to CSR Ltd. A further payment was made on 4 November 2004 for a sum of $2,543,030.28;


(c) on 13 April 2005, Council resolved to seek legal advice as to whether there was an avenue of appeal against the Valuer General’s valuation in view of findings made in regard to the Quarry land in a Land Capability Study and Feasibility Review;

(d) on 26 May 2005, the Council sent a letter to its solicitors, Storey & Gough, instructing them to brief a barrister to obtain advice as to whether Council had any appeal rights in relation to the acquisition. The solicitors instructed Mr T Robertson SC. Subsequently, during conferences with Mr T Robertson, these instructions were expanded to include all possible avenues available to Council recover the moneys expended by Council for the acquisition of the Quarry;


(e) on 21 June 2005 the Deputy Mayor had invited residents to make written submissions in relation to the acquisition of the Quarry by close of business on 29 July 2005. Mr Waite and many other residents made written submissions setting out their concerns. Officers of the Council summarised the concerns of residents into a document of 186 questions. The questions that are of interest to Mr Waite were questions number 136 and 137. These questions were in the following terms:


‘136 When considering CSR valuation that indicated CSR’s view of its property’s potential, did the Valuer General have an obligation to require CSR make disclosures which would have revealed the adverse effects on CSR’s valuation?


137 Did the Valuer General or Hornsby Council seek disclosures or warranties from CSR as to the extent of the environmental problems of which CSR was aware?’



(f) a list of 177 questions was forwarded by Council to Mr T. Robertson SC for the purposes of his Advice. According to a letter, dated 4 October 2005, from the Council’s solicitors to Mr Hinton, the Executive Manager, Planning Division of Council, Mr T. Robertson SC was provided with a copy of about 20 written submissions of residents and the list of questions, to which Mr T Robertson SC was requested to respond to. This letter is contained in the documents filed by Mr Waite;


(g) on 11 February 2006, the Advice of Mr Robertson SC was sent to Council. On the day prior to this the Mayor had issued a press release to say that the Council had received the Advice. A copy of that press release is included in the documents filed by Mr Waite;


(h) on or about 22 February 2006, Mr T Robertson SC attended the meeting of Council. At this meeting officers of Council presented to Council the list of questions it had prepared together with answers to those questions. In respect to question [136] and [137] the answer given was “Tim Robertson, Senior Counsel, advises: - see confidential legal advice”; and


(i) at some time after 22 February 2006, Council put an edited version of the Advice on its website.

26 Mr Hinton, of Council, gave evidence to the effect that Mr T. Robertson SC had provided advice on two separate matters. The first matter, he said, related to advice as to whether the process of the acquisition of the Quarry had been carried out appropriately. The paragraphs of the Advice which relate to this issue are those that have been made available publicly. The other issue on which Mr T. Robertson SC was asked to provide advice was “Council’s future options”. It is in regard to this aspect of the Advice that privilege is claimed. The relevant paragraphs being paragraph 6, 14, 16, 33, 48-50, 56 and 59-142. Mr Hinton went on to say that these particular paragraphs have never been released to the public and officers of the Council and Councillors have each been instructed not to release the paragraphs or the gist or substance of this aspect of the Advice.

27 As pointed out by Barrett J. in Ashfield Municipal Council (supra) at [13] the much cited passage of the High Court in Mann (supra) in assessing whether a particular disclosure amounts to a waiver of privilege, there is a need for an objective inquiry into the nature of the consent to disclose, with the subjective intentions of the client when disclosing being put to one side, and with that objective inquiry being ‘informed by considerations of fairness’ where necessary.

28 In this application an objective inquiry requires an examination of the Advice as a whole, that part of the Advice that has been disclosed and other documents such as the press release of the Mayor of 10 February 2006 and that which is contained in the answers to the list of 177 questions.

29 In determining this application I have had regard to requirements of s.55 of the FOI Act. That section requires the tribunal to ensure that it does not disclose, in its reasons for decision, the content of the matter for which the Council has claimed an exemption.

30 It is appropriate to begin with the Advice and is structure and then consider the circumstances in which the Council has made partial disclosure of that Advice and the content of that disclosure.

31 As mentioned above the Advice consists of 142 paragraphs. These paragraphs are grouped under specific headings, some of which have been disclosed. The first heading, which is included in that part of the Advice that has been disclosed, is ‘Introduction’. There are 6 paragraphs numbered 1 to 6 under this heading. Of these paragraphs, paragraph 1 to 5 have been disclosed. In paragraph 5 of the Advice Mr T. Robertson SC sets out his instructions as follows:

‘Initially I was briefed to advise whether there is an avenue of appeal from the Valuer-General’s determination in view of the findings of the Land Capacity Study and Feasibility Review. I was then provided with a document containing 177 questions, most of which related to the resumption process on which my advice was also sought. In conference, I was asked to review Council’s decision making on the resumption to ascertain whether all proper and appropriate steps had been taken by Council to protect its interests.’

32 On the basis of the content of the above paragraph and the structure of the Advice as a whole, I find that the Advice primarily deals with two distinct subject matters, which I would describe as follows:

(a) Council’s decision making on the resumption of the Quarry, including decisions made in the course of the 2003 litigation by and against the Council (‘the first subject matter’); and


(b) avenues of appeal that may be available to Council in regard to the resumption of the Quarry (‘the second subject matter’).

33 In general the Advice is structured in a logical and sequential manner, with paragraphs 1 to 5, 7 to 13, 15, 17 to 32, 34 to 47 and 51 to 58 each relating to the first subject matter. These paragraphs have all been disclosed.

34 Paragraphs 59 to 142 on the other hand relate to the second subject matter and for which the Council has claimed exemption on the grounds of privilege.

35 The content of the disclosed paragraphs do not, in my opinion, disclose the substance of that which is contained in paragraphs 59 to 142. Nor does the content of the Mayor’s press release of 10 February 2006 or the answers to the 177 questions prepared by officers of the Council disclose the substance of that which is contained in theses paragraphs. On the principles enunciated by Tamberlin J in Bennett (supra), I find that the Council’s conduct in disclosing paragraphs 1 to 5, 7 to 13, 15, 17 to 32, 34 to 47 and 51 to 58 of the Advice is not inconsistent with Council’s claim of privilege over paragraphs 59 to 142. That is, the Council has satisfied the tribunal that there has been no disclosure, either expressly or impliedly, of the substance of that which falls within the second subject matter of the Advice.

36 Accordingly, I find that paragraphs 59 to 142 of the Advice are privileged and therefore exempt under cl.10 of Schedule 1 of the FOI Act.

37 This leaves paragraphs 6, 14, 16, 33 and 48 to 50 of the Advice. As these paragraphs are within that part of the Advice which has been released it is necessary to consider each separately, having regard to their content and the context in which they appear.

38 Paragraph 6 – As mentioned above, this paragraph is within the section of the Advice headed ‘Introduction’ and its content is introductory in nature and is arguably relevant to both subject matters of the Advice. To the extent the paragraph relates to the first subject matter privilege has been waived. The question is whether the contents of this paragraph can be conveniently separated so that which relates to the first subject matter, if disclosed, would not also disclose the substance of the second subject matter. In my opinion, the first 5 sentences of this paragraph provides background to the first subject matter and disclosure of these sentences would not be disclosure of the substance of the remaining sentences in the paragraph or that part of the Advice for which privilege has been claimed.

39 Paragraph 14 and 16 - These paragraphs are included in the section headed ‘Statutory Framework’. That section mainly deals with the relevant provisions of the Land Acquisition (Just Terms Compensation) Act 1991, the role of the Valuer-General under that Act and the appointment, functions and powers of the Valuer-General under the Valuation of Land Act 1916. The section, in general, is relevant to the first subject matter of the Advice. In my opinion, having regard to the content of the disclosed paragraphs in this section, the content of paragraph 14 and the majority of paragraph 16 are directly interconnected and the Council’s conduct in disclosing the other paragraphs in this section is inconsistent with its claim of privilege over these two paragraphs. The only exception is the last sentence of paragraph 16, which relates to the second subject matter, the substance of which has not been disclosed, and which in my opinion can readily be separated from the remainder of that paragraph.

40 Paragraph 33 – This paragraph is included in the section of the Advice headed ‘The Valuer-General’s Determination’. That section deals with the material provided by Council and CSR to Mr Nicholson, the valuer who undertook the valuation of the Quarry land on behalf of the Valuer-General. Again the section, in general, is relevant to the first subject matter of the Advice. In my opinion, other than the penultimate sentence, the content of this paragraph is also directly interconnected to the content of the paragraphs that have been disclosed. Again Council’s conduct in disclosing the other paragraphs in this section is inconsistent with its claim of privilege in regard to this paragraph generally. The penultimate sentence however, directly relates to the first subject matter of the Advice and for the same reasons stated above, privilege in regard to it has not been waived. That sentence can also be separated from the content of the remaining parts of that paragraph.

41 Paragraphs 48 to 50 – These paragraphs are included in the section headed ‘Second Legal Action – Challenge to Valuer-General’s Determination’. That section deals with the actions of Council following receipt of the Valuer-General’s determination in 2003, including the legal advice obtained by Council in regard to what action was available to it. This section is also relevant to the first subject matter. Once again, in my opinion, having regard to the content of these paragraphs and the content of the disclosed paragraphs, they are each interconnected. I also find that in substance they have no connection with the contents of the second subject matter of the Advice. So I find the Council’s conduct in disclosing the other paragraphs in this section is inconsistent with its claim of privilege in regard to these paragraphs.

42 Accordingly, in summary, on the material before the tribunal, I find that privilege in the following paragraphs or parts of paragraphs has been impliedly waived by the Council:

(a) first 5 paragraphs of paragraph 6;


(b) paragraph 14;


(c) paragraph 16, other than the last sentence;


(d) paragraph 33, other than the penultimate sentence; and


(e) paragraphs 48 to 50.

43 Even where a document is found by the tribunal to contain exempt matter as determined by the agency, in New South Wales University v Gerard Michael McGuirk [2006] NSWSC 1362 at [102] Nicholas J. held as follows:

102. In my opinion, s.63 ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it.

44 Section 63 of the Administrative Decisions Tribunal Act (‘the ADT Act’) sets out the tribunal’s power on review of a reviewable decision. This application is an application for review of such a decision.

45 At [103] Nicholas J. said that the correct position in regard to the tribunal’s power on review of a reviewable decision of an agency under the FOI Act was as set out by the tribunal in Mangoplah Pastoral Co. Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [85], which was in the following terms:

‘85. Consistent with this jurisprudence, absent any special limitation on the Tribunal’s review function in applications under the FOI Act, it has the function by reason of s.63 of ADT Act – indeed the duty – when reviewing a determination under ss.24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s.25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it.”

46 This discretion to release an exempt document, as pointed out in Mangoplah and as accepted by Nicholas J. in McGuirk, arises under s.25(1)(a) of the FOI Act. His Honour described the discretion as an “overriding discretion”: see at [104]. A discretion that is available to an agency when determining an FOI request and one that is available to the tribunal in determining the correct and preferred decision.

47 Mr Lazarus, counsel for the Council, argued that the decision of Nicholas J. in McGuirk (supra) was distinguishable from the current application as the exemptions relevant to that case were the exemptions contained in cl.6 (personal affairs) and cl.20 (a protected disclosure) of Schedule 1 of the FOI Act and not cl.10 of the Schedule. He argued that the cl.10 exemption, unlike the other exemptions, protected a long established legal right, being a substantive right, of an individual to have confidential communications, between him/her and his/her legal adviser, for the relevant purposes, protected from disclosure.

48 It is difficult to see how the principle as enunciated by Nicholas J. in McGuirk (supra) does not equally apply to those documents which are held to be exempt on the basis that they contain matter over which an agency has claimed to be exempt on the grounds of privilege.

49 However, what His Honour did not go on to explain is how that override discretion is to be exercised.

50 In this regard Mr Lazarus relied on the recent decision of the Victorian Supreme Court in Osland (supra). That decision related to an application for access to documents by Osland pursuant to the Victorian Freedom of Information Act 1982 (‘the FOI Act (Vic)”). The documents requested by Osland were documents that were determined to be the subject of legal professional privilege. Under s.50(4) of the FOI Act (Vic) the Victorian Civil and Administrative Tribunal (‘VCAT’) is expressly given the same powers as the determining agency or Minister in respect of an FOI request, including a power to decide that access should be granted to an exempt document where VCAT is of the opinion that the public interest requires that access to the document should be granted under that Act. In that case, VCAT had exercised its discretion to release the documents Osland had requested access to notwithstanding its finding that they were privileged. VCAT’s rationale for releasing the documents were that they did not contain advice that was likely to be directly relevant to any future government decision, they were properly characterised as historical documents and would enable discussion of the merits of the government’s decision. That is when the document was considered individually the public interest required the disclosure of the privileged document. The Victorian Court of Appeal held that the tribunal had erred (per Maxwell P. at [91], Ashley JA at [113] and Bongiorno AJA at [120]).

51 In that decision, at [84], Maxwell P. said the following:

‘84. … As the High Court has stated, the doctrine of privilege is itself the product of a balancing exercise between competing public interests, whereby the public interest in the “perfect administration of justice” is accorded paramountcy over the public interest that requires the admission in evidence of all relevant documents. The public interest factor which underpinned the privilege support all privileged documents uniformly. Those factors do not vary, depending on the particular content of a privileged document or upon whether the document has, or lacks, current relevance . …’ (italics added)

52 At [91] Maxwell P. held that VCAT had fallen into error by taking into account an irrelevant consideration being the extent to which “the public” wished to know. His Honour then went on to say the following in regard to the power conferred on VCAT by s.50(4) of the FOI Act (Vic):

‘92 The power conferred on the Tribunal by s.50(4), to grant access to an exempt document, is exercisable only if the Tribunal concludes that the public interest requires that access be granted. That is a stringent test. As this Court has said in Hulls , “requires” in this context is synonymous with “demands” or “necessitates”. There is “a sense of the imperative.” The public interest consideration(s) said to require the granting of access must be so strong as to override the public interest consideration underpinning the applicable exemption(s). The case for access must, in effect, be irresistible.


93. …


94. In my opinion, abstract policy considerations, such as the desirability of greater transparency in decision making by the executive, have no place in the s.50(4) analysis – in this or any other case. This is so because, at the level of general policy, the Act itself has already struck the balance between the public interest in the maintenance of legal professional privilege, on the one hand and the public interest in access to documents relevant to executive decision-making, on the other.


95. At the level of general principle, so Parliament has determined, the public interest in the confidentiality of privileged documents prevails over the public interest in access. That is the effect of the s.32 exemption. It is not for the Tribunal to revisit that policy decision. It is not for the Tribunal to decide whether, having regard to the type of decision in issue, the public interest in transparency should by means of s.50(4) be elevated to the status of an overriding public interest.


96. Even if – contrary to my view- it had been open to the Tribunal to conclude, as a matter of policy, that such decision-making should be (more) transparent, it still would not follow that the public interest required disclosure of the legal opinions relied on. …’ (italics added)

53 At [123] Bongiorno AJA said the following in regard to the override provision under s.50(4) of the FOI Act (Vic):

‘123. Legal professional privilege is itself a legally enforceable consequence of the application of a public interest of the highest order. If application of the override requires the Tribunal to determine whether considerations of “the public interest” are so strong as to outweigh or override those factors which make the document exempt, that outweighing or overriding must be compelled by the public interest consideration. It is only if the concept of compulsion is borne in mind that the exercise can be appropriately termed a balancing one. To have applied s.50(4) properly the Tribunal would have had to have been able to express itself in terms which conveyed that it had no practical alternative but to allow access. It would have to have been of the opinion that unless access was granted the public interest would suffer or be diminished in some way. Short of such a state of satisfaction the public interest would not require that there be access to the document.’

54 The decision in Osland has been cited with approval by the tribunal in Cianfrano v Director-General, Attorney General’s Department (No.2) [2007] NSWADT 231; Howell v Macquarie University (No.2) [2007] NSWADT 227; Cianfrano v Director-General, Premier’s Department [2007] NSWADT 216; and Howell v Macquarie University (No.2) GD [2007 NSWADT 51. However, the tribunal has not adopted the same principles in regard to the override discretion. This reason for this is undoubtedly the fact that the NSW FOI Act does not have an equivalent to the Victorian s.50(4).

55 The principles that apply to the override discretion under the NSW FOI Act were considered by the President in Cianfrano [2007] 216. At [24] the President relevantly said the following of the exercise of the override discretion:

24. At this early point in the exercise of this power, the following principles to guide the exercise of the discretion have emerged:

(1) …


(2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption.


(3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in s.5.


(4) …

56 The objects of the FOI Act relevantly provide as follows:

‘s.5(1) The objects of this Act are to extend, as far as possible, the rights of the public:

(a) to obtain access to information held by the Government, and


(b) …


(2) The means by which it is intended that these objects are to be achieved are:


(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and


(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and


(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.


(3) It is the intention of Parliament:


(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and


(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.


(4) …’

57 At [27] the President went on to say the following:

27. Practical circumstances that might influence the Tribunal to exercise the discretion include:

- whether the exempt matter was, by other means, in the public domain


- whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant


- the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity


- the public interest in an informed debate on issues of significance to the community


- whether there were adverse consequences for the proper administration of government, and their extent


- whether any adverse consequence is remote or innocuous

58 In my opinion the reasoning of the President in Cianfrano [2007] 216 is correct. However, I am also of the opinion that the reasoning in Osland (supra) is equally applicable not withstanding the fact that the override discretion under the FOI Act (NSW) is implied and not express as in the FOI Act (Vic). The reason being that the competing public interests that both Acts seek to address are the same.

59 In this application, the tribunal accepts that Mr Waite and others within the Hornsby Shire have a direct interest in what is contained in that portion of the Advice for which privilege has been claimed. Under the principles enunciated in Osland the fact that members of the public have a legitimate interest in the subject matter of the Advice as a whole, is not a relevant consideration for the purpose of the override discretion vested in the tribunal under the FOI Act. The question is whether there is a public interest consideration which compels the tribunal to override the public interest of non disclosure of privilege communications. In this application no such public interest consideration arises.

60 Applying the considerations set out by the President in Cianfrano [2007] 216, I would come to the same conclusion, as that portion of the Advice for which privilege has been claimed has not been disclosed, the Council has taken steps to ensure that it not be disclosed, the Council has in this application expressly confirmed its right of privilege over the material and disclosure of this material would adversely affect the proper administration of Council as it would frustrate any future legal action the Council may take.

61 In Cianfrano (supra) at [69] the President held that on external review of a decision under the FOI Act an applicant who asserts that the agency had failed to adequately search for documents requested must persuade the tribunal through some credible material that the agency’s determination is a deemed refusal under s.24(2) of the FOI Act in that the agency has failed to locate documents.

62 In this application there does not appear to be any dispute that written instructions were provided to senior counsel in respect to his Advice. However, other than the one document they were not generated by the Council.

63 The real issue in this application is the manner in which the Council construed Mr Waite’s FOI request. As mentioned above, the Council interpreted his request literally to mean ‘email’ instructions to senior counsel from Council directly. Although Mr Waite’s FOI request can be read literally to only refer to ‘email’ instructions, I accept that this is not what he meant. He meant access to copies of instructions including those sent by email.

64 It would appear that Council understood what documents Mr Waite was seeking access to. Otherwise it is difficult to understand why it provided Mr Waite with a copy of the letter. Had there been any confusion then the Council was required by s.19 of the FOI Act to take steps which were reasonably practicable to assist Mr Waite in clarifying his request.

65 Having understood what documents Mr Waite was seeking access to the Council was obliged to identify those documents it ‘held’ which could be described as being Instructions to Mr T. Robertson SC for the purposes of his Advice. The term ‘held’ is defined in s.6(2)(e) of the FOI Act to mean:

‘a reference to a document held by an agency includes a reference to a document to which the agency has an immediate right of access and a document that is in the possession, or under the control, of a person in his or her capacity as an officer of the agency.’

66 In my opinion, to the extent that Council’s solicitors, Abbott & Tout, have in their possession instructions which would fall within the description of Mr Waite’s FOI request, these are documents to which the Council has an immediate right of access. That immediate right of access arises because these instructions were given by Abbott & Tout in their capacity as solicitors retained by the Council. Accordingly, these are documents that the Council should have identified and made a determination pursuant to ss.24 and 25 of the FOI Act as to whether to grant Mr Waite access to the documents or to refuse him access.

67 As the Council has failed to identify these documents, it is appropriate for the tribunal to find that Council’s decision in regard to the Instructions to senior counsel is not the correct and preferred decision. At the same time the tribunal recognises that Council may determine that some or all of these Instructions are exempt on the grounds of legal professional privilege or some other grounds.

68 Accordingly, the appropriate order is to set aside the Council’s decision in regard to documents it holds concerning the Instructions to senior counsel and remit this part of the Council’s decision for reconsideration pursuant to s.63(3)(d) of the ADT Act. That will dispense with this application.

69 I recommend that prior to reconsidering its decision Council seeks clarification from Mr Waite, who should provide specific clarification as to the documents he seeks having regard to these reasons for decision.

70 For the reasons set out above the tribunal orders:

(a) The Council’s decision in regard to the Advice of Mr T Robertson SC, dated 1 February 2006, is varied by granting Mr Waite access to the following additional paragraphs or part paragraphs:

first 5 paragraphs of paragraph 6;


- paragraph 14;


- paragraph 16, other than the last sentence;


- paragraph 33, other than the penultimate sentence; and


- paragraphs 48 to 50.



(b) The Council’s decision in regard to the Instructions to Mr T Robertson SC for the purpose of the Advice, dated 1 February 2006, is set aside and remitted pursuant to s.63(3)(d) of the ADT Act.