Webb v Port Stephens Council

Case [2017] NSWCATAD 348


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Webb v Port Stephens Council [2017] NSWCATAD 348
Hearing dates:23 August 2017
Date of orders: 29 November 2017
Decision date: 29 November 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:

(1) The decision of the respondent is affirmed in Claim 201700146393.

 

(2) The decision of the respondent is affirmed in Claim 201700089292.

 

(3) In respect of 201700089313 the non-personal information within the line entries marked as personal information of third parties, for which the respondent has applied an overriding public interest against disclosure, shall be released to the applicant 28 days after the publication of these reasons. Those entries are to be released except in so far as they name members of the public who are not council employees, identifying information such as addresses, phone numbers or references that would otherwise constructively identify those persons.

 

(4) In Claim 201700089311 (in respect of the non LLP claimed matters), the respondent is to release the signature to the correspondence dated 23 November 2011, 28 days after the publication of these reasons. The decision is otherwise affirmed.

 

(5) In respect of claim 201700146396 the e mail identified in paragraph 78 of the Confidential Reasons shall be released 28 days after publication of these reasons. I also direct that the respondent review the matter in accordance with the terms of paragraph 81 of the Confidential Reasons within 28 days of the date of publication of these reasons and advise the Tribunal whether any further information is forthcoming. The respondent has liberty to apply on this point. The decision is otherwise affirmed.

 (6) In respect of claim 201700146399 (the e mail identified in paragraph 79 of the Confidential Reasons shall be released 28 Days after publication of these reasons. I also direct that the respondent review the matter in accordance with the terms of paragraph 81 of the Confidential Reasons within 28 days of the date of publication of these reasons and advise the Tribunal whether any further information is forthcoming. The respondent has liberty to apply on this point. The decision is otherwise affirmed.
Catchwords: GIPA Act – Government Information – Access – Confidential evidence – Legal professional privilege – Waiver of privilege – Circumstances where privilege waived - Decisions substantially affirmed – Weight of evidence – Public interest considerations against disclosure – Sufficiency of evidence to override general presumption.
Legislation Cited: Civil and Administrative Tribunal Act 2013
Environmental Assessment Planning and Assessment Act 1979
Government Information (Public Access) Act 2009
Privacy and Personal Information Protection Act 1998
Cases Cited: Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464
McClymont v Department of Family and Community Services [2017] NSWCATAD 202
Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13
Hutchinson v Walcha Shire Council [2015] NSWCATAD 132
Webb v Port Stephens Council [2017] NSWCATAD 271
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AGLC
Webb v Port Stephens Council [2017] NSWCATAD 348
Case
[2017] NSWCATAD 348
Decision Date

CaseChat Overview and Summary

The decision of the Administrative Appeals Tribunal involves a dispute between the applicant, Mr. Webb, and the Port Stephens Council. The applicant sought access to certain documents under the Government Information (Public Access) Act 2009 (NSW). The central issue before the Tribunal was whether the Council was justified in withholding certain documents on the grounds of legal professional privilege and overriding public interest.

The legal issues the court was required to decide included whether the Council had properly identified and applied the legal professional privilege and overriding public interest exemptions. The court had to examine whether the documents in question were indeed privileged and whether the public interest in withholding them outweighed the public interest in disclosure. Additionally, the court had to determine if the Council had appropriately assessed the weight of the evidence and public interest considerations in its decision-making process.

The Tribunal found that the Council had correctly identified and applied the exemptions in most instances. The court held that the documents contained privileged legal advice and that the public interest in maintaining confidentiality was sufficient to override the presumption in favour of disclosure. However, the Tribunal also found that certain non-personal information could be disclosed without compromising the privilege or public interest. The Tribunal affirmed most of the Council's decisions but directed the release of specific non-personal information within certain documents. The Tribunal further directed the Council to review certain matters and report back within a specified timeframe.

In summary, the Tribunal largely affirmed the Council's decisions but ordered the release of specific non-personal information from certain documents and directed the Council to review certain matters. The Tribunal found that the Council had appropriately applied the relevant exemptions and weighed the evidence and public interest considerations. The Tribunal's decision was thus to affirm the Council's decisions in most respects, with specific directions for the release of certain information and further review.

Orders

Orders of the court

(1) The decision of the respondent is affirmed in Claim 201700146393.

(2) The decision of the respondent is affirmed in Claim 201700089292.

(3) In respect of 201700089313 the non-personal information within the line entries marked as personal information of third parties, for which the respondent has applied an overriding public interest against disclosure, shall be released to the applicant 28 days after the publication of these reasons. Those entries are to be released except in so far as they name members of the public who are not council employees, identifying information such as addresses, phone numbers or references that would otherwise constructively identify those persons.

(4) In Claim 201700089311 (in respect of the non LLP claimed matters), the respondent is to release the signature to the correspondence dated 23 November 2011, 28 days after the publication of these reasons. The decision is otherwise affirmed.

(5) In respect of claim 201700146396 the e mail identified in paragraph 78 of the Confidential Reasons shall be released 28 days after publication of these reasons. I also direct that the respondent review the matter in accordance with the terms of paragraph 81 of the Confidential Reasons within 28 days of the date of publication of these reasons and advise the Tribunal whether any further information is forthcoming. The respondent has liberty to apply on this point. The decision is otherwise affirmed.

(6) In respect of claim 201700146399 (the e mail identified in paragraph 79 of the Confidential Reasons shall be released 28 Days after publication of these reasons. I also direct that the respondent review the matter in accordance with the terms of paragraph 81 of the Confidential Reasons within 28 days of the date of publication of these reasons and advise the Tribunal whether any further information is forthcoming. The respondent has liberty to apply on this point. The decision is otherwise affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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