Walden & Toni v Leichhardt Municipal Council

[2001] NSWADT 81

Set aside by Appeal: Set aside by appeal on 13/11/2001

CITATION:	Walden and Toni -v- General Manager, Leichhardt Municipal Council [2001] NSWADT 81
DIVISION:	General Division
PARTIES:	APPLICANTS Kim Baiba Walden Paul David Toni RESPONDENT General Manager, Leichhardt Municipal Council
FILE NUMBER:	003335
HEARING DATES:	16/03/2001
SUBMISSIONS CLOSED:	03/16/2001
DATE OF DECISION:	05/21/2001
BEFORE:	O'Connor K - DCJ (President) at 1
APPLICATION:	access to documents - legal professional privilege - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Freedom of Information Act 1989 Local Government Act 1993 Local Government Amendment (Meetings) Act 1998
CASES CITED:	Charteris v General Manager, Leichhardt Municipal Council [2000] NSWADT 81 Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 (1999) CLR Grant v Downs (1976) 135 CLR 674 Mann v Carnell (1999) 201 CLR 1 [1999] HCA 66 Goldberg v Ng (1995) 185 CLR 83 Attorney General (NT) v Maurice (1986) 161 CLR 475 Mangoplah Pastoral Co P/L v Great Southern Energy [1999] NSWADT 93 SAS Trustee Corporation v Daykin [2000] NSWADTAP 20
REPRESENTATION:	APPLICANT A Chalk, solicitor RESPONDENT C Ronalds, barrister
ORDERS:	1 Decision under review set aside; 2 Documents in dispute to be released after 28 days

1 The applicants, a married couple, have applied for review of a decision made under the Freedom of Information Act 1989 (FOI Act) by the respondent council to refuse to release certain documents requested by them.

Outline

2 This case arises out of a dispute the applicants have with their council over conditions of a development consent for the building of their home on a vacant site owned by them. The vacant site was created by the subdivision of a larger site. The larger site is known as 60 Elswick Street, Leichhardt. The new site is known as 58A Elswick Street, Leichhardt. The applicants bought that site from the developer, Gamine Investments Pty Ltd, on 1 Apri1 2000. The developer had lodged the original development consent. The disputed condition was imposed by council in its decision granting approval on 8 February 2000.

3 In anticipation of that occurrence, the developer had lodged an appeal in the Land and Environment Court on 19 January 2000. The applicants took over the appeal on purchase of the site. They discontinued the appeal on 8 May 2000, and instead sought internal review of the determination by the council as permitted by s 82A of the Environment Planning and Assessment Act 1979 (s 82A application). That Act provides that the decision whether or not to review the determination must not be made by the person who made the original determination unless it was made by the council itself (s 82A(5)). That was the situation in this case. Ultimately at its meeting on 20 July 2000 the council undertook the internal review, and not only confirmed its original decision but varied the condition to make it stricter. Greater details are given later in these reasons.

4 Of the documents sought in original FOI request only three documents now remain in dispute. They are two reports from the external expert, one dated 2 March 2000, the other 10 April 2000 and a letter of instructions to the solicitors dated 8 March 2000.

5 In response to the appeal the council had given instructions to its solicitors to obtain those reports. The council has claimed legal professional privilege in relation to these reports; and relies on that ground to exempt the documents from disclosure under the FOI Act. The applicants submit that the documents are not subject to privilege; or if they are that the Tribunal should find that by virtue of its conduct that council has waived legal professional privilege; and if waiver has not occurred the Tribunal should nonetheless in the public interest direct that the documents be disclosed.

6 The exemption, clause 10, Schedule 1 to 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.’

7 The case highlights the difficult situation that applies in relation to council processes once a decision in relation to a development consent application is made and an appeal is lodged. It is to be expected that the council will obtain confidential advice in relation to the appeal. But the officers and councillors who are provided with that advice may continue to have a role in relation to any right of internal review that is exercised by the disappointed applicant while the appeal is pending. This is a factor which distinguishes this case from another recent decision relating to legal professional privilege and planning appeals, involving as it happens the same council as respondent: Charteris v General Manager, Leichhardt Municipal Council [2000] NSWADT 81; on appeal, Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12.

Background

8 The applicants wished to build a home on the site in accordance with plans prepared for the developer, Gamine Investments by one of its principals, an architect, Mr Neil Smalley of Annandale. The applicants had dealt with Mr Smalley in relation to the purchase are were keen to proceed on the basis of his plans.

9 The site (58A) was narrow (7.16m wide at front widening to 7.42m on rear boundary) and long (approx 28m) and suited to a two storey town house style dwelling. The plans submitted for approval were to that effect.

10 Prior to subdivision the land was known as 58A, was undeveloped and formed part of the garden alongside a dwelling. No 58 was a narrow site typical of the area, with a single storey cottage. The side wall was about 150-200mm from the boundary with what was 60 Elswick Street and was now to become 58A Elswick Street.

11 Planning approval for the erection of the dwelling at 58A was given by the council at a meeting on 8 February 2000. The owners of 58 had objected to the location of the side wall on the basis that it did not provide sufficient space to permit effective underfloor ventilation or for undertaking work as needed on their side wall, guttering and the like. Plans showed the side wall of 58A as running close to or along the boundary.

12 Council officers recommended that the side wall of the proposed dwelling at 58A be set back by 300mm. This clearly would result in some loss of internal space. The architect was accepting of that recommendation. The effect of the recommendation was that a space of about 500mm between the two side walls (300mm on the 58A side, about 200mm on the 58 side) would be allowed. Council did not accept the officers’ recommendation, but decided that the set back be 800mm from the boundary for a distance of approximately 10 metres. The 10 metres matched the length of the side wall at 58 which was set in from the boundary. (The back part of the side wall at 58 is shown in the plans submitted as adjoining the boundary, with no set back.)

13 As noted earlier, the applicant had by the time of the decision on 8 February 2000 already lodged an appeal to the Land and Environment Court. The council gave instructions to its solicitors, Pike, Pike and Fenwick, to defend the appeal. It asked its solicitors to obtain independent expert advice from Trevor R Howse & Associates Pty Ltd, Building Regulations Consultants. As noted earlier, one of the council’s letters of instruction and the two Howse reports are the documents that remain in dispute.

14 The Land and Environment Court appeal was discontinued on 8 May 2000 by the present applicants. Instead they pursued a course first canvassed by council officers with Mr Smalley being the making of a s 82A application.

15 The matter was listed for consideration by the relevant committee of council, the Building and Development Committee, on 23 May 2000. Contrary to usual procedure the two expert reports received from Mr Howse were circulated with the papers accompanying the item. The executive officer who manages the legal affairs of the council, Ms Lyons, noticed this, and as a result asked for the Committee to deal with this item in its closed session known as the Committee of the Whole. She was concerned to protect the privileged status of the reports. When the matter came on for consideration she advised the Committee that the appeal had been discontinued and recommended that the item be dealt with at a later meeting, which recommendation was accepted.

16 The matter was placed on the agenda for the meeting of 20 July 2000 where it was dealt with in open session in accordance with usual procedures. The papers accompanying the item included (as usual) a report from officers and recommendations. The Howse reports were not included.

17 Council confirmed its previous decision as to the set back distance, 800mm, but varied the decision as to its length requiring it to run for the whole length of the property - 28 metres as against 10 metres previously.

18 In practical terms this meant that the applicants had now lost about 10% of the internal space (as against plan) not only for the front half of the proposed dwelling but now also for the back half of the proposed dwelling (which had an overall length of about 18 metres). Viewed another way, 58A now had a side way for its whole length similar in nature to the side ways on neighbouring properties at 58 and 56. (The plans submitted show that the cottage at 58 had a side path on its land providing space between it and the boundary with 56.)

FOI Application - History

19 The applicants lodged an FOI application on 24 July 2000 as follows:

‘1. All documents relied upon, considered or perused by Ms Adele Cowie in the course of the preparation by her of the Building and Development Council Meeting for 20 July 2000 Supplementary Report in respect of the ...property [ie 58A Elswick Street] ...whether her reliance or consideration was a consequence of the perusal of the document by her or its contents being communicated to her orally;

2. All documents relied upon, considered or perused by Ms Alison McCabe in the course of her decision to approve the Supplementary Report referred to in paragraph 1, whether her reliance or consideration was a consequence of the perusal of the document by her or its contents being communicated to her orally;

3. All documents provided to any Councillor by an officer of the Council which related to the review, pursuant to section 82A of the Environmental Planning and Assessment Act 1979, of development consent D/1999/689 determined on 20 July 2000, other than the Supplementary Report referred to in paragraph 1.’

20 By letter dated 8 August 2000, the council granted access to the development application files but refused access to the ‘legal matters’ files. By letter dated 28 August 2000, the applicants pressed their application in relation to the ‘legal matters’ files.

21 The council’s reply to this request is dated 21 September 2000. It advised that the documents held on the ‘legal matters’ file had been exempted from release relying on the legal professional privilege exemption (cl 10, Schedule 1) cited earlier.

22 The letter then gave a second ground for claiming exemption:

‘The Trevor Howse letter to Council’s Solicitors dated 10 April 2000 was attached to a Committee of the Whole report to Council dated 23/5/00 and as such remains confidential …in accordance with Section 11(2)(b) of the Local Government Act.’

23 Section 11 of the Local Government Act 1993 provides:
‘11. Public access to correspondence and reports

(1) A council and a committee of which all the members are councillors must, during or at the close of a meeting, or during the business day following the meeting, give reasonable access to any person to inspect correspondence and reports laid on the table at, or submitted to, the meeting.
(2) This section does not apply if the correspondence or reports:
(a) relate to a matter that was received or discussed, or
(b) were laid on the table at, or submitted to, the meeting,
when the meeting was closed to the public.
(3) This section does not apply if the council or committee resolves at the meeting, when open to the public, that the correspondence or reports, because they relate to a matter specified in section 10A (2), are to be treated as confidential.’
24 The letter then went on to say:

‘The documents on the ‘legal matters’ file are identified in Annexure A (see attached sheet).

I have considered whether Council should waive its privilege on these documents and have decided that such a decision would not be in the public interest. My decision is in part based on the possibility of future litigation concerning the development of this site and the costs and time involved in seeking legal advice on the waiver of privilege for each individual document.’
25 The annexure listed 16 documents as withheld.

26 The applicants sought internal review by letter dated 4 October 2000, limiting the review request to the following documents:
1. The letter from Trevor Howse to the Council’s solicitors dated 10 April 2000;
2. The letter from Trevor Howse to the Council’s solicitors dated 2 March 2000;
3. The letter from the Council’s solicitors to Trevor Howse dated 8 March 2000;
4. Any letter listed in Annexure A of Mr Georgakis’ letter [the letter notifying the original decision] which:
a. Provided instructions or further instructions for an expert opinion in relation to either 58 or 60 Elswick Street, Leichhardt; and/or,

b. Sought further advice or clarification in relation to an expert opinion already expressed; and/or,
c. Served a Land and Environment Court Practice Directions Number 16: Expert Witness Practice Directions 1999;
5. Neil Smalley’s letter dated 20 Apri1 2000 (which is attached to the document identified in paragraph 13 of Annexure A of Mr Georgakis’ letter).
27 The council confirmed its previous decision to refuse to release these documents. The acting general manager replied by letter dated 17 October 2000. It does not systematically deal with each of the five categories of application. The material parts of the letter follow:

‘I sought legal advice on Council’s obligations under the Freedom of Information Act and have received and considered that advice. Based on that advice, Council believes it is entitled to claim the benefits of the exemption under Clause 10 of Schedule 1 of the Freedom of Information Act.

I have also considered whether Council should waive its privilege over the documents sought, however as I understand further Development Applications with respect to this property will be lodged, and therefore there may be further legal proceedings by way of Class 1 applications, it would not be in the public interest for Council to waive its privilege.’
Application for Review

28 The application for review by this Tribunal was filed on 24 October 2000.

29 At hearing counsel for the council advised, without objection, that there were no documents in the possession of the council relating to item 4. The applicant advised that the letter sought under item 5 had been obtained by from another source (Mr Smalley himself) and was no longer sought under the FOI application.

30 So the documents now in dispute in these proceedings are those referred to at items 1, 2 and 3 above. They have been lodged as a confidential exhibit with the Tribunal.

31 In his affidavit filed in these proceedings Mr Toni said,

‘[We] wished to obtain the Trevor Howse report because we wanted know whether there was any planning or building basis for the set back as that would assist us in the preparation of our plans. It was obviously desirable for our architect to have access to as much relevant information relating to site as possible prior to preparing final plans.’

32 Mr Toni went on to say that if access is granted to the documents among other things he and his wife propose to use them as evidence in the Land and Environment Court proceedings and to lodge a complaint about the conduct of the council with one or more of the following bodies - the Department of Local Government, the Ombudsman or the Independent Commission Against Corruption.

33 At hearing the council relied on one exemption, the legal professional privilege exemption found in cl 10 to Schedule 1. There was no further reference to s 11(2)(b) of the Local Government Act 1993.

34 It is helpful at this stage to give some further background as to the dispute underlying this application.

35 The appeal was lodged in January 2000, it was said, after Mr Smalley had learnt from the officers with whom he had been dealing that there was a possibility that their recommendation would not be accepted, and that council would require a wider set back. As anticipated when the matter was considered by the Building and Development Committee of the council on 8 February 2000, the officer advice and the set back previously referred to was imposed.

36 As noted earlier the matter was listed for 23 May 2000, but was taken out of open session and removed to closed session once it was discovered that the confidential Howse reports had been circulated with the papers.

37 As to the events of 23 May 2000, Ms Lyons said in her affidavit that -

‘19. Contrary to usual Council practice, the advice from Trevor Howse & Associates regarding the appeal was attached to the assessment report on the Application for a Review of Determination. As a consequence, the assessment report was considered in closed session.

Strictly, the assessment report itself was not confidential or privileged and therefore should not have been considered in closed committee. Council deferred consideration of the [application] … to the next meeting on 20 July where it was considered with the supplementary report in a meeting open to the public (albeit without the privileged attachment). There was no confidential report to this meeting on the Application.’
38 In her oral evidence at hearing Ms Lyons said that usually the relevant papers for items are distributed to councillors on the Thursday before the Tuesday meeting. These documents are placed on public display on Friday, the day after circulation. Papers for the closed meeting, the Committee of the Whole (which considers matters such as staffing, tenders, legal actions), are circulated in a separate confidential paper and not placed on public display. Ms Lyons acknowledged that confidential papers can sometimes bear on papers circulated publicly, and noted that councillors ‘all struggle with how to best balance those two competing interests of public debate of an issue and consideration of confidential material.’ (ts33)

39 At the meeting on 20 July 2000 report from officers reiterated their earlier advice and supported the application, recommending a 300mm set back. As noted council not only confirmed its previous decision as to the extent of the set back but significantly increased the distance over which the set back was to be provided.

Legal Professional Privilege

40 The council’s position is that the documents were created in the course of obtaining legal advice to defend itself against the appeal.

41 Following the decision of the High Court (by majority; McHugh, Kirby JJ dissenting) in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67, (1999) CLR, the law in Australia now is that legal professional privilege will attach to a confidential communication, oral or in writing, made for the dominant purpose of obtaining or giving legal advice or assistance or for use in legal proceedings. The High Court overruled its decision in Grant v Downs (1976) 135 CLR 674 that had held that the relevant test was whether that was the sole purpose. See generally Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12.

42 Ms Lyons, explained in evidence that it was normal practice for the council to seek the views of an expert independent of the council when there was a disagreement between officers and the elected council giving rise to an appeal.

43 Mr Chalk for the applicants submitted that the Howse reports served more than one purpose. There were at least two purposes for their being obtained, to assist in relation to the appeal and to be used in the further consideration of the matter by council. He contended that the first purpose (legal assistance) was neither the sole or dominant purpose.

44 That submission can not, I consider, be sustained. The matter should be judged by reference to the circumstances that applied at the time of creation of the document. I agree with Ms Ronalds that at that time the sole purpose for the obtaining of the Howse reports was, in accord with usual council practice, to obtain an alternative expert view in relation to the matters that had given rise to appeal. I am satisfied from Ms Lyons’ evidence and from scrutiny of the exempt documents that the solicitors were instructed to obtain the Howse reports to assist in determining what position it should take in relation to the appeal. If there is a later use or disclosure of the privileged document for purposes other than those protected by the privilege, whether the document retains its privileged status is to be assessed by reference to the principles relating to waiver.

Waiver

45 Mr Chalk for the applicants submitted that if legal professional privilege applied to the documents then the Tribunal should find that it had been waived by the council in the present case.

46 Mr Chalk relied on various circumstances. He submitted that an alleged conversation between Mr Smalley and Ms Lyons gave rise to a waiver that was express or necessarily to be implied. Alternatively, he relied on the circulation of the documents before the 23 May 2000 meeting in its own right as affording a basis for finding that waiver had occurred; and if that was not sufficient in its own right, he referred to a number of circumstances in relation to the conduct of the council that should enable the Tribunal to conclude that waiver should be imputed by operation of law on grounds of fairness to the applicant.

The State of the Law

47 Waiver can be express, implied or imputed by operation of law: Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66; Goldberg v Ng (1995) 185 CLR 83; Attorney General (NT) v Maurice (1986) 161 CLR 475.

48 In Attorney General (NT) v Maurice (1986) 161 CLR 475, Mason and Brennan JJ said at 487-488:

‘A litigant can of course waive his privilege directly through intentionally disclosing protected materials. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of protected communications.’

See also per Gibbs CJ at 481; and per Deane J at 492-493.
49 In Mann v Carnell [1999] HCA 66 at [29] Gleeson CJ, Gaudron, Gummow and Callinan JJ observed:

‘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.’

50 The circumstances that may give rise to waiver of legal professional privilege have been given close attention by the High Court in the cases mentioned, Mann v Carnell, Goldberg v Ng and Attorney General v Maurice.

51 None of these cases involved express waiver. There was an issue in each case as to whether an intentional disclosure for a limited purpose gave rise to waiver. In each of them it was clear that the privilege holder wished to maintain the privilege.

52 In Maurice the disclosure was compelled. There material required to be filed in support of a land claim was derived from privileged material. The High Court ruled that privilege over the source documents had not been lost as a result. It was a compelled disclosure for a limited purpose where there was no evidence of any intention to waive privilege.

53 In Goldberg the disclosure in issue was not compelled but it was made by a legal practitioner subject to a professional duty to co-operate with the process of investigation of a complaint against him.

54 Mann v Carnell concerned a disclosure by the Chief Minister of the Australian Capital Territory government to a Member of the Legislative Assembly following enquiry by the Member to satisfy concerns as to the cost of litigation in which the government was involved. Counsel’s advice and other papers connected with the conduct of the case were given to the Member for scrutiny to assist in justifying the government’s position.

55 In Mann v Carnell the High Court noted that a distinction can be drawn between two types of ‘implied’ waiver. In one instance the implied waiver is based on the subjective intention of the privilege holder. In the other instance it is clear that there is no intention to give up the privilege, but nonetheless general considerations of fairness between the parties justifies abrogation of the privilege. The latter instance may be referred to as waiver imputed by operation of law.

56 For example in Goldberg, Deane, Dawson & Gaudron JJ said at [18]:

‘Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether “fairness requires that his privilege shall cease whether he intended that result or not” (Wigmore on Evidence (McNaughton Rev1961), vol 8, par 2327, quoted with approval by Gibbs CI and by Mason and Brennan JJ in Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481, 488). That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes.’

(i) The Conversation between Mr Smalley and Ms Lyons

57 Mr Smalley was called to give evidence on the alleged conversation. Mr Smalley said that Ms Lyons had after the decision of 8 February 2000 discussed with him the possibility of using the s 82A review facility rather than pursuing the Land and Environment Court appeal.

58 He said that she had indicated that a preliminary report had been received from Mr Howse (the letter dated 2 March 2000), but did not regard it as adequate and had asked for a further report. According to Mr Smalley she made some reference to the contents of the document, saying that it was mainly a descriptive account of the relevant Building Code requirements. He said she said that it was not sufficiently site-specific.

59 Ms Lyons gave evidence on this matter. She could not recall the specific content of the conversation, but indicated that it was normal practice for her to inform disappointed applicants of their internal review right.

60 I am prepared to accept Mr Smalley’s account of the conversations with Ms Lyons. I do not regard it as being sufficiently precise as to the contents of the Howse report to permit the conclusion that Ms Lyons by her conversation expressly or impliedly waived the report’s privileged status.

61 The level of disclosure of the contents of the first Howse report (the 2 March 2000 report) on the part of Ms Lyons was minimal. There is no suggestion in any of the evidence that she made any form of disclosure of the second report (the report of 10 Apri12000) to Mr Smalley.

62 As I see it, Ms Lyons was simply seeking to keep an applicant generally informed of the progress of the matter on the council side. She acted in a way which was in keeping with good standards of administration.

(ii) Other Circumstances

63 As noted earlier, what occurred was that the Howse reports were mistakenly attached to the item, Application for Review of a Determination, listed for the council meeting on 23 May 2000.

64 Arguably there was no disclosure similar to that dealt with in the leading cases. It was not intentional. It was not to an external third party such as the Law Society (in Goldberg) or a Land Claims Commissioner (in Maurice) or a Member of the Legislative Assembly who was not a Minister and consequently did not belong to the executive branch of government (Mann v Carnell). The error was discovered prior to the distribution of the papers, and consequently the item was moved to closed session - steps taken in an attempt to preserve the privilege.

65 But the difficulty, as alluded to at the outset of these reasons (see para [7]), that arises here is that the councillors have two relationships to the Howse reports. In one capacity, they are members of the council that is a party to litigation. In another capacity, they remain decision-makers in relation to subject matter addressed by the reports, by virtue of the s 82A review procedure. The council is at the same time respondent to an external appeal and decision-maker in relation to an internal review. The same officers and the same elected councillors are likely to have an interest in both matters. In this instance for example Ms Lyons was involved in both ways. The councillors were entitled to see the papers relating to the litigation, and to hear and determine the internal review application.

66 Questions of fairness arise.

67 Mr Chalk said that it is not his clients’ position that every time the council obtains a report from an expert and then goes on to conduct a review the effect is that it has waived its privilege. He submitted that the relevant factors here are that the council having obtained the report elected to use it in the administrative process. He said that even that may not have been enough to waive the privilege had the council simply reconfirmed its previous position. As will be seen, I have a broader view.

68 In Goldberg a solicitor’s client had taken civil proceedings against the solicitor over the solicitor’s conduct concerning money placed with the solicitor by the client. The disaffected clients furnished the Law Society with the papers relating to the civil action. It commenced a disciplinary investigation. The solicitor permitted the investigators to inspect statements and other material that he had provided to his legal adviser in respect of the civil action, but only on the basis that their privileged status was observed. The Law Society initially resisted a summons for production of the material from the disaffected clients. It then agreed to submit to orders for production, at which point the solicitor initiated action before the Court of Appeal and ultimately the High Court to maintain the privilege. The High Court ruled by majority that the privilege had been lost having regard to considerations of fairness. The Law Society had not taken action against the solicitor after scrutinising the material. In the civil action this outcome might have been used to throw doubt on the plaintiff’s case. In these circumstances the plaintiffs should be entitled to see the material furnished to the Law Society.

69 It might be said in contrast that the situation presented by this case has come about because the applicants (and their predecessor, Gamine Investments) not the privilege holder chose to activate the appeal and review processes. I do not regard that as material, as they were simply exercising rights conferred by law.

70 In evidence, Ms Lyons said that in council matters dual relationships to issues often arise. It is not uncommon for the same subject matter to arise in both the open and closed sessions of councils and for different material to be seen. In the present instance, the practice is that the internal review papers not include any expert report obtaining for purposes of advice in relation to the appeal.

71 The councillors, it seems, proceed as if the other material does not exist. But the reality is that once an expert report is commissioned for the purposes of defending the appeal, and privilege is asserted in relation to it, the council has a greater amount of information available to it relevant to the matter remaining before it than does the applicant.

72 The applicant is clearly at an informational disadvantage in circumstances where up to that point the council practice is to make all its material available. In my opinion, this is a situation where waiver should be imputed by law in accordance with the principles enunciated in Goldberg and Mann v Carnell.

73 The waiver arises primarily because the council has not disposed of its responsibilities in relation to the matter (it is not functus officio, to use the legal term). Expert reports have been obtained under privilege while a right of review remained exerciseable; the right was exercised; and the contents of the reports were known or could have been known to those involved in the chain of decision-making relating to the right of review (both relevant officers and relevant councillors).

74 I do not see it as determinative in this regard that there was in this instance a mistaken circulation of the Howse reports to the Building and Development Committee causing the item to be moved to closed session and a decision deferred.

75 The problem of unfairness as I see it is inextricably connected to the dual character of the role that councillors find themselves performing once a process of appeal and of internal review are on foot simultaneously. I recognise what Ms Lyons had to say to the Tribunal regarding the inevitability in council administration of situations where councillors (and officers) sit sometimes in closed session, and at other times in open session in relation to the same or similar matters. But I do not see that not-uncommon situation as disposing of the difficulties presented by this case.

76 I should add that I do not see these conclusions as bearing on the status of expert reports that are obtained where an appeal is resuscitated after a completed review (as may well occur here). Council does not have a dual character once it has fully discharged its decision-making role.

77 Mr Chalk pressed me in examining fairness considerations to look at the entire history of this application and various aspects of the conduct of council. I do not consider that necessary or desirable. The case law as it has developed to date in relation to waiver based on considerations of fairness has approached that matter in a circumscribed way. There are dangers in taking a broader approach, emphasised by McHugh J in dissent in Mann v Carnell at [129]-[133].

78 I make the following brief comments on the matters raised by Mr Chalk. The use of closed meeting procedures is a usual method in many organisations for dealing with items requiring confidentiality. I was invited by Mr Chalk to take note of the official guidelines (circular 98/51) issued by the Director General of Local Government following the passage of the Local Government Amendment (Meetings) Act 1998, as to the circumstances when sessions should be closed. These guidelines do not directly address the situation that arose here where confidential papers are mistakenly circulated prior to a meeting intended to be open. The vice to which the guidelines are addressed was not perpetrated, i.e. a council substantively dealing with a matter in private that should be dealt with in public. Nor is there any unfairness involved in a council failing to accept officers’ recommendations (as has occurred throughout this process).

79 So in those respects I accept the submissions of Ms Ronalds.

The section 25 Discretion

80 In light of my conclusion that waiver has occurred, it is not essential for me to go on to consider the s 25 point. But in case I am wrong in my conclusion in relation to waiver, because of the extent of consideration this matter received at hearing I make the following observations.

81 Section 25(1)(a) of the FOI Act provides that ‘An agency may refuse access to a document (a) if it is an exempt document...’. Accordingly, an agency can chose to release a document even though it is exempt.

82 The Tribunal at Divisional level has ruled that in cases where it finds an exemption applicable it may apply this discretion in the same way that the agency can: Mangoplah Pastoral Co P/L v Great Southern Energy [1999] NSWADT 93. This was seen as consistent with the objectives of FOI legislation to promote the maximum disclosure to the community of information possessed by government.

83 The question of the Tribunal’s power in this regard was the subject of close analysis in Mangoplah and that reasoning has been adopted without any further analysis in a number of other decisions.

84 Mr Toni has filed an affidavit in these proceedings giving his account of the whole of the circumstances of the handling of the development application, and outlining his concerns with the procedures followed by the council. The Tribunal was invited to have regard to the whole of this material, as it assisted at least in informing the Tribunal in relation to the exercise the discretion conferred by s 25(1)(a).

85 Ms Ronalds for the council objected to paras 5-39 of the affidavit as irrelevant to the only question as she saw it that was properly before the Tribunal, i.e. namely whether the documents in dispute fell within the scope of the legal professional privilege exemption; and submitted further that it was not open at all for the Tribunal to exercise the discretion conferred on agencies by s 25.

86 I expressed some reservations about getting into a detailed exploration of that issue on this occasion. Instead I indicated that if I was minded provisionally to invoke the s 25 discretion on the basis of the material filed, I would give Ms Ronalds the opportunity to file detailed written submissions as to the more fundamental question of whether it is open to the Tribunal to exercise the s 25 discretion.

87 I indicated to the parties that there would have to be very good reason for the Tribunal when dealing with an FOI case to permit the expansion of its proceedings to such a degree that it heard evidence on matters of disputed fact relating to the general circumstances out of which the FOI application had arisen.

88 I do not see any power that the Tribunal has to exercise this discretion - the ‘public interest over-ride’ discretion, as it is often referred to - as also providing applicants with a platform for a general attack on the respondent agency’s practices, thereby requiring the Tribunal to undertake a general collateral inquiry into the administrative practices that generated the documents in issue in the FOI proceedings. The Tribunal must, I consider, be vigilant in not permitting its proceedings to expand into a general examination of the broader context of an FOI application.

89 Such is the public interest served by the maintenance of legal professional privilege, that there would, in my view, have to be a very significant countervailing public interest identified to allowing disclosure of privileged documents on the basis of s 25.

90 Had this case not involved the situation of parallel appeal and internal review processes - the factor giving rise to imputing waiver by operation of law - I would not have been minded to intercede by exercising any s 25 discretion open to the Tribunal. The applicants have the remedy of appeal to the Land and Environment Court as the means for dealing with their various objections to the procedure followed and the merits of the council decision. It would not, in my view, ordinarily be in the public interest for the Tribunal to get involved via an FOI application in making determinations that interfere with the jurisdiction of another tribunal or court before which the principal dispute is being, or may be, ventilated.

91 But the case does highlight a difficulty to which I have alluded (sitting at Appeal Panel level). For the ‘correct and preferable’ administrative decision to be made, all relevant material should be available to the parties and the decision-maker. On the other hand in cases conducted in the adversarial style, it is open to the administrator not to make available material that is protected by privilege even though it may be directly relevant: see SAS Trustee Corporation v Daykin [2000] NSWADTAP 20. Nevertheless, where the substantive jurisdiction to deal with the merits of the dispute is vested in another tribunal or court, that body’s ability to deal with privileged material should not ordinarily be disturbed.

Order

1. Decision under review set aside.

2. Documents in dispute to be released after 28 days.