Woollahra Municipal Council v Minister for Local Government

[2016] NSWLEC 44

Land and Environment Court

New South Wales

Medium Neutral Citation:	Woollahra Municipal Council v Minister for Local Government [2016] NSWLEC 44
Hearing dates:	19 April 2016
Date of orders:	19 April 2016
Decision date:	19 April 2016
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	See paragraphs [6], [14], [16] and [21]
Catchwords:	PRACTICE AND PROCEDURE – subpoenas for production of documents – public interest immunity – whether documents subject to – documents submitted or prepared for submission to Cabinet – client legal privilege – legal advice to one department given to another department – whether waiver – forensic purpose of subpoena for certain classes of documents – whether no legitimate forensic purpose
Legislation Cited:	Evidence Act 1995 s 117 Local Government Act 1993 ss 218F, 263
Category:	Procedural and other rulings
Parties:	Woollahra Municipal Council (Applicant) Minister for Local Government (First Respondent) Dr Robert Lang (Second Respondent) Chief Executive, Office of Local Government (Third Respondent)
Representation:	Counsel: Dr C J Birch SC with Mr R Higgins and Ms T Phillips (Applicant) Mr N C Hutley SC with Mr J Hutton, Dr J Lucy and Mr T O’Brien (Respondents)    Solicitors: Speed and Stracey Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	40297 of 2016
Publication restriction:	No

Judgment

1. Woollahra Municipal Council has by subpoena filed 7 April 2016 to the Department of Premier and Cabinet sought production of various documents relating to the proposal of the Minister for Local Government to amalgamate the local government areas of Woollahra, Waverley and Randwick.

2. The Minister for Local Government has moved by notice of motion filed in court today to set aside certain paragraphs of the subpoena, namely pars 6 and 11, on the basis that they did not disclose a legitimate forensic purpose for seeking the documents and has objected to production of certain documents falling within other paragraphs on the basis that they are subject to public interest immunity or client legal privilege.

3. The documents the subject of the claims for public interest immunity and legal professional privilege have been identified in schedules to the affidavits of Mr Paul Miller dated 18 April 2016 and 19 April 2016. I will start with the claim for public interest immunity.

4. The documents the subject of the claim for public interest immunity fall into three categories:

1. Documents concerning "Local Government Reform: Merger Impacts and Analysis". A document so entitled was published on 18 December 2015. That document has been produced. Mr Miller, in his affidavit of 18 April 2016, said that an earlier version of this document was annexed to a Cabinet submission (referred to as the “Long Form Document”). The Long Form Document was considered by Cabinet and was substantially longer than the published document. The Long Form Document is item 26 in annexure D to Mr Miller's affidavit of 18 April 2016. There were earlier drafts of the Long Form Document and emails attaching those drafts, being items 8 to 14 and 19 to 25 of annexure D to Mr Miller's affidavit of 18 April 2016: see par 33 of Mr Miller's affidavit of 18 April 2016.

2. Documents concerning "Implementation of Local Government Mergers: Business Case". This is item 1 in annexure PM-2 to Mr Miller's affidavit of 19 April 2016. There were earlier drafts of this document and emails attaching the drafts, being items 1 to 6 in annexure D of Mr Miller's affidavit of 18 April 2016. Mr Miller said about these documents that the document entitled "Implementation of Local Government Mergers: Business Case" (referred to as the “Business Case Document)” was prepared by KPMG and was submitted by the relevant Minister to Cabinet. The Business Case Document was brought into existence for the purpose of preparing a submission to Cabinet. Emails between the Department of Premier and Cabinet and KPMG, which attached versions of the Business Case Document, were brought into existence for the purpose of preparing a Cabinet submission and disclosure would disclose the substance of matters considered and discussed by Cabinet: pars 29 and 30 of Mr Miller's affidavit of 18 April 2016.

3. Documents concerning "Options Analysis Local Government Reform." There were two documents with this title, one being item 2 in annexure PM-2 to Mr Miller's affidavit of 19 April 2016, and the other being item 16 in annexure D of Mr Miller's affidavit of 18 April 2016. There also were summaries of the information contained in the Options Analysis documents, being items 17 and 18 of annexure D to Mr Miller's affidavit of 18 April 2016. Mr Miller said about these documents that the Options Analysis documents were not ultimately submitted to Cabinet. However, they were prepared for the purpose of submission to Cabinet and ultimately informed another document, which was submitted to Cabinet (being the Business Case Document referred to earlier).   The Options Analysis documents also relate to the framing of government policy concerning council amalgamations at a high level. Excel spreadsheets, entitled, "Summary cover - regional cluster options" and "Summary cover - revised metro cluster options," contained a contemporaneous summary of some of the information that was contained in the Options Analysis documents. Disclosure of this information would disclose the information that was contained in the Options Analysis documents and the Business Case Document: pars 35 and 36 of Mr Miller's affidavit of 18 April 2016.

5. I note that the document referred to in item 15 in annexure D to the affidavit of Mr Miller of 18 April 2016 is no longer claimed to be subject to public interest immunity.

6. I am satisfied that, at this stage, I should not order disclosure of the documents subject to the claim for public interest immunity that I have described above.

7. In determining whether or not to allow a claim of public interest immunity, the Court must balance the public interest in withholding the disclosure of information, or the production of a document, against the public interest in ensuring that courts performing the functions of justice should have access to relevant evidence. If, on balance, disclosure would be harmful, then it will not be permitted.

8. A claim of public interest immunity gives rise to three steps. The first is that the harm that would flow from disclosure must be demonstrated. If that is demonstrated, the Court will initially incline against disclosure. Second, the need of the party seeking access must be identified and it must be shown that disclosure would be likely materially to assist that party's case in the litigation. Third, if the first two steps have identified matters to be weighed, the conflicting aspects of the public interest must be weighed.

9. Here, I am satisfied that the first step is demonstrated: disclosure of the documents described above would be injurious to the public interest. Second, I am not satisfied, as I understand the case of the Council at the moment, that disclosure would be likely materially to assist the Council's case in the litigation. I understand that the documents were not before or considered by the delegate of the Departmental Chief Executive of the Office of Local Government in his examination of the referral of the amalgamation proposal under s 218F(1) of the Local Government Act1993 by the Minister or in preparing his report to the Minister.

10. The Council will argue, at the hearing, that the delegate should have made inquiries seeking the documents that are the subject of the public interest immunity claim. But the Council does not need to have access to the documents in order to run this argument. It may be that the case, as it is run at the hearing by the parties, will change this conclusion that the documents will not materially assist the Council in its case. If so, my view on this step may need to change. The Council can renew its claim for production and disclosure of the documents in that event. But at the moment, I am not persuaded that disclosure of the documents would be likely materially to assist the Council's case in the litigation. This means that the final step of weighing the first two factors does not need to be undertaken.

11. I turn to the claim for legal professional privilege. The Minister for Local Government claimed legal professional privilege in respect of three documents listed in annexure E of Mr Miller's affidavit of 18 April 2016. Mr Miller identifies that the first email was from an officer, Mr Steve Orr, in the Department of Premier and Cabinet, to the delegates of the Departmental Chief Executive of the Office of Local Government, dated 31 January 2016. This email communicated, on a confidential basis, legal advice that had been provided orally to Mr Orr by two legal officers of the Department of Premier and Cabinet on or about 31 January 2016. The second email was from Mr Orr to the delegates dated 1 February 2016. That email communicated to the delegates on a confidential basis, in point 1, legal advice provided orally to Mr Orr by the legal officers of the Department of Premier and Cabinet, in points 2-4, legal advice provided to the legal officers of the Department of Premier and Cabinet by an external lawyer dated 1 February 2016 and, in point 5, legal advice provided by one of the legal officers of the Department of Premier and Cabinet to Mr Orr in an email dated 28 January 2016. The third email was from Mr Orr to the delegates dated 2 February 2016. That email communicated legal advice provided by one of the legal officers from the Department of Premier and Cabinet to Mr Orr, dated 2 February 2016: pars 37-42 of Mr Miller's affidavit of 18 April 2016.

12. The Minister argued that "the client" for the purpose of the definition in s 117 of the Evidence Act1995 was the State and that the two departments, the Department of Premier and Cabinet and the Office of Local Government, were parts of that one client of the State. Legal advice provided by lawyers to one department (the Department of Premier and Cabinet), which was in turn communicated to another agency within a department (the Office of Local Government), did not waive legal professional privilege as the legal advice was kept within the confines of the one client. In this case, the Departmental Chief Executive of the Office of Local Government and his delegate were still part of the same client of the State. Hence, the legal advice provided by government and external legal advisers to the Department of Premier and Cabinet, which was in turn communicated to the delegate of the Departmental Chief Executive, was still covered by legal professional privilege.

13. The Council argued, however, that the delegate of the Departmental Chief Executive of the Office of Local Government was acting independently and not as part of the government in exercising the function of considering and reporting on the referral by the Minister of the amalgamation proposal under s 218F of the Local Government Act. Hence, the delegate was not part of the client of the State and the communication by the Department of Premier and Cabinet to that delegate waived legal professional privilege.

14. I do not consider that the fact that the delegate of the Departmental Chief Executive of the Office of Local Government was exercising functions under s 218F of the Local Government Act meant that he was no longer part of the client of the State or that there was any waiver of legal professional privilege by the Department of Premier and Cabinet by disclosing the legal advice to the delegate. I consider that those three documents are subject to legal professional privilege.

15. As I have earlier noted in the judgment, the Minister for Local Government also seeks to strike out pars 6 and 11 of the Council's subpoena on the basis that they serve no forensic purpose. I am not satisfied that I can definitively conclude at this stage that documents falling within those categories serve no forensic purpose for the Council in its case. It is not necessary in ruling on a subpoena to determine whether documents which would fall within the paragraphs challenged would, in fact, be relevant and admissible to be tendered at the hearing; it is sufficient that they might be relevant or that they might set up a train of inquiry which may produce documents or evidence that could be admitted in support of the Council's case.

16. Accordingly, I am not persuaded at this stage that I should strike out pars 6 and 11 of the subpoena to produce simply on the ground that there is no forensic purpose in seeking those documents.

17. The Minister for Local Government, by the same notice of motion, also sought relief in relation to the subpoena issued by the Council to KPMG. One order that the Minister sought was that there be no access granted to those documents caught by the schedule to the KPMG subpoena that would be injurious to the public interest to produce. I understand that KPMG have produced those documents to the Court, but have separately bundled the documents and marked them as being subject to a public interest immunity claim.

18. For the reasons I have given earlier in the judgment, those documents should not be produced as it would be injurious to the public interest to produce them at this stage. My earlier comments that this could change if the parties’ respective cases change at the hearing. In that event, I can re-evaluate the situation. At the moment, as I understand the Council's case, I am not prepared to require that those documents be produced.

19. The other order that the Minister sought was that the subpoena seeking the balance of the documents be set aside on the basis that these other documents are not sought for a legitimate forensic purpose. Again, it is difficult at the stage in my understanding of the case of the Council, to say that there is no legitimate forensic purpose.

20. It is more difficult, in respect of documents in the possession of KPMG that have not been produced or have not been given to the Minister for Local Government or the Office of Local Government or the delegate of the Departmental Chief Executive of the Office of Local Government, to say that they will be relevant and admissible. However, the Council wishes to put a case that the delegate in undertaking the inquiry required under s 263 of the Local Government Act should have called for information from KPMG, and that the information that may have been produced could have included some of the information in the documents held by KPMG. I am not ruling now as to whether that argument is right or, if any documents were sought to be tendered at the trial, whether they would be relevant and admissible.

21. It is sufficient at this stage that I note that this is what I understand the Council is going to argue. In that regard, there may be some forensic purpose in the Council inspecting the documents that have been produced by KPMG. For this reason, I am not prepared to strike out any part of the subpoena addressed to KPMG on the basis that the documents sought therein are not for a legitimate forensic purpose.

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Decision last updated: 22 April 2016