Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gregory v Secretary, Department of Education [2024] NSWCATAD 353 Hearing dates: 15 November 2024 Date of orders: 27 November 2024 Decision date: 27 November 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: EA MacIntyre, Senior Member Decision: (1) The administratively reviewable decisions of the Respondent are set aside. (2) The decision to release information made by the Respondent in the course of these proceedings is affirmed. (3) The decision to redact the information in Redactions 3(a) and (b) is affirmed. (4) The administratively reviewable decisions of the Respondent are otherwise remitted to the Respondent for reconsideration in accordance with these reasons. (5) Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION and information in evidence found to be the subject of client legal professional privilege, are not to be published or disclosed to the Applicant or the public. Catchwords: ADMINISTRATIVE LAW - administrative review - government information - access application - enforceable right to access government information - - conclusive presumption of an overriding public interest against disclosure - legal professional privilege - public interest considerations against disclosure - public interest considerations in favour of disclosure - balance - personal information ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Evidence Act 1995 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 CCB v Department of Education and Communities [2015] NSWCATAD 145 Chamley v Sydney Children's Hospital Network [2013] NSWADT 197 Fadlallah v Insurance and Care NSW [2021] NSWCATAD 304 Jackson v University of New South Wales [2019] NSWCATAD 224 Johnston v TAFE NSW [2019] NSWCATAD 152 Mann v Carnell [1999] HCA 66 Save Bungendore Park Inc v Minister for Education and Early Learning [2023] NSWLEC 140 Standard Chartered Bank of Australia Ltd & Anor v Antico & Ors [1995] (1993) 36 NSWLR 87 In the matter of Southland Coal Pty Ltd (rec and mgrs apptd) (in liq) [2006] NSWSC 899 Texts Cited: Nil Category: Principal judgment Parties: Richard Gregory (Applicant) Secretary, Department of Education (Respondent) Representation: Agent: S Gregory (Agent) (Applicant) Solicitors: Crown Solicitor (Respondent) File Number(s): 2024/00246043 Publication restriction: Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION and information in evidence found to be the subject of client legal professional privilege, are not to be published or disclosed to the Applicant or the public. REASONS FOR DECISION 1. The applicant in this matter, Mr Richard Gregory ("Applicant") seeks access to certain information from the respondent concerning a development project. He applied for information under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). The respondent, the Secretary, Department of Education ("Respondent") refused his access application in part. Refusal was based partly on a claim by the Respondent for legal professional privilege and partly on the basis that the information sought was personal information. The Applicant seeks review of the decisions refusing his access application. Background 1. By application filed on 4 July 2024, the Applicant sought review of decisions of the Respondent to release only certain information in response to an access application made by the Applicant and withhold other information. 2. The Minister for Planning on 24 January 2023 had granted consent for the construction of a new high school at Bungendore in New South Wales. The site of the development is located within the State electoral district of Monaro. 3. The information in question was sought by application received by the Respondent on 16 June 2023. The information sought by the Applicant included certain information contained in briefs prepared for the Deputy Premier of NSW at the time, concerning the project for development of the new school. 4. The Deputy Premier was, at the time, also the Minister for Education and Early Learning. 5. The Respondent made a decision on 28 July 2023 allowing access to certain information but refusing access to other information. The refusal was in part based on the ground that the information withheld was subject to a claim for legal professional privilege. Other information withheld was personal information. 6. The Applicant on 19 August 2023, sought external review of the Respondent's decision by the Information Privacy Commissioner ("IPC"). The decision of the IPC concluded that the decision of the Respondent was not justified and recommended that the Respondent make a new decision by way of internal review. The IPC was not satisfied that the Respondent had adequately addressed the components of legal professional privilege. 7. The relevant project became the subject of various legal proceedings in the Land and Environment Court ("LEC proceedings"). 8. These proceedings had commenced on 17 March 2023. The proceedings originally named the Respondent as the first respondent. Subsequently, the Minister of Planning was joined as the second respondent to the LEC proceedings. The Respondent and the Department of Planning and Environment exchanged information about legal advice they had received relating to the proceedings. 9. On 13 December 2023, Pritchard J delivered judgment in the matter (Save Bungendore Park Inc v Minister for Education and Early Learning [2023] NSWLEC 140). Her Honour held the grant of development consent by the Minister for Planning, purportedly pursuant to a development application under s 4.38 of the Environmental Planning and Assessment Act 1979 (NSW) for the construction and operation of the new high school at Bungendore, to be invalid. 10. On 15 December 2023, the Respondent sought to vary their original decision. The Respondent released additional information but refused to provide access in whole or part to some of the information sought. 11. On 14 January 2024, the Applicant sought review of the decision of 15 December 2023 by the IPC. The IPC concluded that the Respondent's decision to refuse access was not justified. 12. The Applicant, by application filed on 4 July 2024, sought review by the Civil and Administrative Tribunal ("Tribunal") of the Respondent's decisions of 28 July 2023 and 15 December 2023. 13. Subsequent to the commencement of these proceedings, the Respondent determined to release additional information to the Applicant. What remains in dispute is certain information contained within documents provided to the Applicant in redacted form. These documents are briefs prepared for the Deputy Premier. The Applicant seeks access to the parts redacted. 14. The Respondent provided to the Tribunal a closed bundle of documents on a confidential basis. That bundle included the relevant briefs to the Deputy Premier. The Applicant had been served with an open bundle of the same documents, with redactions having been made to those parts withheld by the Respondent. Both bundles were before the Tribunal. 15. At the hearing of the matter, the Respondent made submissions to the Tribunal on a confidential basis in support of the Respondent's claim to confidentiality over the redacted parts of the open bundle of documents. These submissions were made in the absence of the Applicant and the public, pursuant to s 107(2) of the Civil and Administrative Tribunal Act 2013 ("NCAT Act"). The Applicant's evidence includes an affidavit from their Deputy Counsel, describing the creation of the documents in issue and their handling within the Respondent organisation. 16. At the hearing of the matter, evidence was produced of a telephone call taking place on 4 May 2023, between the Member of Monaro and the Applicant's agent. The Applicant's evidence was that in that telephone call, the Member for Monaro described his understanding of legal advice received by the Respondent, as to their prospects of success in the LEC proceedings. Applicant's right to information 1. The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective" (s 3(1)(b) of the GIPA Act). 2. A person who makes an access application for government information has a "legally enforceable right to be provided with access to the information" (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act. 3. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1). It may decide to refuse to provide access to information because there is an overriding public interest against disclosure of the information (s 58(1)(d)). 4. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government information (s 12(1) of the GIPA Act). However, the right to access will not be available where "there is an overriding public interest against disclosure of the information" (s 9 of the GIPA Act). 5. There is an overriding public interest against disclosure of government information for the purposes of the GIPA Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13 of the GIPA Act). It is, however, to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 of the GIPA Act (s 14(1) of the GIPA Act). Whether or not there is a conclusive presumption against disclosure is in issue in the present matter, in respect of some of the information in question. 6. The power of the Tribunal to review a decision arises where a person is aggrieved by a "reviewable decision" of an agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) ("Administration Act") of that decision (s 100 of the GIPA Act). 7. What are "reviewable decisions" of an "agency" is set out in s 80 of the GIPA Act. They include a decision to refuse to provide access to information in response to an access application (s 80(d) of the GIPA Act). 8. There is no dispute that the Respondent is an "agency" within the meaning of the GIPA Act. 9. An agency has, therefore, made a "reviewable decision" within s 80 of the GIPA Act, the agency being the Respondent and the "reviewable decision" being a decision to refuse to provide access to information. 10. The Tribunal under s 63 of the Administration Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal. 11. The provisions of the GIPA Act referred to above apply where the Applicant has made a valid "access application" seeking "government information". It is not in dispute that the Applicant made an "access application" under Part 4 of the GIPA Act and that the information requested was "government information" (see definition of these terms in s 4 of the GIPA Act). In these circumstances, that the Applicant had made a valid access application was not disputed. 12. The Respondent has the onus of establishing that the decision it has made is justified (s 105(1) of the GIPA Act). Consideration 1. The first question for determination by the Tribunal is whether, as the Respondent submits, it is to be conclusively presumed that there is an overriding public interest against disclosure of the relevant information the Applicant seeks. That presumption applies, in the present case, to government information described in Schedule 1 of the GIPA Act as follows. "5. Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5". 1. It has been accepted that the provisions of the Evidence Act 1995 (NSW) ("Evidence Act") governing legal professional privilege are applicable to the determination of whether government information is privileged and to clause 5 of Schedule 1 of the GIPA Act. This includes the provisions set out in s 118 applying to legal advice and s 119 applying to litigation. These provisions are as follows: "118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of— (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client". 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of— (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party". 1. The terms "confidential communication" and "confidential document" are defined in s 117 of the Evidence Act as follows: "confidential communication" means a communication made in such circumstances that, when it was made-- (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law". "confidential document" means a document prepared in such circumstances that, when it was prepared-- (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law". 1. The Tribunal has observed that the effect of the statutory scheme may be the same as under the common law of privilege, at least as regards the application of the "dominant purpose" test (Fadlallah v Insurance and Care NSW [2021] NSWCATAD 304, at [63]), although there may be certain differences between the reach of the statutory provisions and common law (Mann v Carnell [1999] HCA 66, at [20], [22] and [25]). The relevance of common law principles governing legal professional privilege was previously confirmed in Jackson v University of New South Wales [2019] NSWCATAD 224, at [96]). 2. Where a claim for privilege is to survive in respect of a confidential document, the "dominant purpose" test must be satisfied both under s 118 and 119. Section 118 may apply to a confidential document prepared by a "client, lawyer or another person". Section 119 refers to a confidential document being prepared for the required purposes but does not specify by whom. 3. It is well accepted that communications between a solicitor and client for the dominant purpose of the provision of legal advice is subject to legal professional privilege (AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234). This proposition was not disputed. What was disputed was whether, in fact, information in the briefs in question was confidential and was for the dominant purpose of the provision of legal advice. 4. A claim of privilege can be established by evidence about the circumstances surrounding the communications as well from the documents the subject of the claim (In the matter of Southland Coal Pty Ltd (rec and mgrs apptd)(in liq) [2006] NSWSC 899, at [28]). In some cases, examination of the document itself may be sufficient to determine whether or not a claim for legal professional privilege can stand based on dominant purpose. In Chamley v Sydney Children's Hospital Network [2013] NSWADT 197, the Administrative Decisions Tribunal said, at [32] that in "some cases it will be obvious from an examination of the written communication itself that the dominant purpose of the communication was the provision of legal advice". 5. The subject matter of the claim for legal professional privilege in these proceedings is not the entirety of the relevant documents but parts of the documents in question, which have been redacted by the Respondent. Those redactions, in the submission of the Respondent, include redactions made to remove from the copy of the documents provided to the Applicant, information that the Respondent claims is subject to legal professional privilege. It is well established that privilege attaches to communications and not to the pieces of paper on which they were written (Mann v Carnell [1999] HCA 66, at [16]). The dispute is whether the redacted parts of the documents in question fall within s 119(b) or otherwise s 118(c) of the Evidence Act. Can legal professional privilege be claimed? 1. Whether or not the redaction of material from the briefs in question can be justified on the basis of a claim for client legal professional privilege requires consideration of a number of matters. They are: 1. the stated description of the briefs in question 2. what character the redacted information in question has on its face 3. the circumstances surrounding the creation of the briefs and the information sought to be protected within those briefs. 1. In some circumstances, a review of the documents themselves may be sufficient to determine whether legal professional privilege attaches (Chamley). In other circumstances, the evidence surrounding the creation of the relevant documents may assume importance. Each of these matters, however, is relevant and requires consideration in the present case. 2. The briefs in question are all described in their headers as "Official: Sensitive - NSW Legal". That description, on its face, may evidence that confidentiality was intended. The existence of legal professional privilege is not, however, established merely by the use of a verbal formula, or by mere assertion that privilege applies to particular communications (AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234, at [44]). I do not find the description of the documents in question as being determinative of the matter. However, the description given remains relevant. 3. The next question for consideration is what conclusions can be drawn from the face of the communications themselves, as to whether or not legal professional privilege attaches to the information sought to be protected by the Respondent. The briefs in question contain information describing the project in question. That information includes the history of the project and the decision-making process underlying the selection of the site chosen for the project. The briefs also describe the objections of certain persons to the project. This information may be intended to be confidential but does not appear to be in the nature of legal advice or necessarily for a purpose of legal advice. 4. However, the briefs also contain what, on the face of the documents, is legal advice. That information has been redacted in the open bundle of documents. The relevant redactions are found in various places within the briefs in question, each addressing a discrete subject matter. The advice in other words is not found in a single document or in a single place but is distributed throughout the briefs in question in the midst of other subject matters. Accordingly, I address each subject matter contained in the redacted material as follows. 5. [NOT FOR PUBLICATION] 6. [NOT FOR PUBLICATION] 7. It appears clear that the material redacted (other than certain redacted personal information), on its face, sets out legal advice relating to the LEC proceedings. I find that the dominant purpose of that information, was, on the face of the documents, the provision of legal advice. The context and description of the documents as "sensitive" supports a conclusion of confidentiality. Review of the relevant briefs, on their face, therefore, allow me to conclude that the Respondent's claim that the relevant redacted information is protected from disclosure on the basis of legal professional privilege, can be sustained, subject to consideration of the evidence of the surrounding circumstances. 8. The circumstances surrounding the creation and use of the relevant briefs, including the legal advice contained in those briefs, remains relevant. Ms Simone Nokes gave evidence on behalf of the Respondent as to the circumstances. She was Deputy Counsel for the Respondent and had held that role since April 2023. She described her role as one of providing "independent legal advice" to the Respondent. In that role, she managed the "school infrastructure and commercial legal team" of the Respondent, as one of her functions. This team, according to her evidence, dealt with the acquisition of property and construction and maintenance of schools. She was one of the seven people in the legal team that supported the relevant school project. Ms Nokes also gave evidence that she had personally provided direct legal support to the school project in question. 9. Ms Nokes' evidence was that the Respondent, in addition to relying on her team and her, also engaged external legal advice and representation in respect of the school project in question, retaining a firm of solicitors with planning expertise to advise generally. That engagement occurred in approximately March 2021. 10. Ms Nokes' further evidence was that the briefs in question were written by the "Bungendore School Project Team" and were reviewed by Ms Nokes and her team. These briefs, according to her evidence, regularly summarised or recorded legal advice which the Respondent had received, "either from its internal lawyers or from external lawyers". Her evidence was that the legal advice in question had either come "directly from" her or was legal advice received from external lawyers. In each case, this occurred under a client lawyer relationship. 11. To the extent that the briefs contain Ms Nokes' own legal advice, particular considerations arise out of her role as a government lawyer. Where a government lawyer provides advice, evidence of the government lawyer's independence is required to substantiate a claim for legal professional privilege. In CCB v Department of Education and Communities [2015] NSWCATAD 145, Lucy SM said, at [75]: " …. without evidence of a government lawyer's independence, it may not be possible to find that the document or communication was a "confidential document" or "confidential communication" within s 118 of the Evidence Act. It is also possible that, if it is not established that a lawyer has the requisite independence, the advice would not properly be described as "legal advice." Other cases supporting the proposition that it is necessary to show that an in-house lawyer is independent include Banksia Mortgages Ltd v Croker [2010] NSWSC 535, Schmidt J at [19]-[26]; Rilstone v BP Australia Pty Ltd [2007] FCA 1557, Besanko J; Re Philip Morris Limited and Prime Minister [2011] AATA 556, Forgie DP esp at [98]-[100]; and Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 at [83]". 1. The requirement for independence on the part of an "in house" lawyer was affirmed in Johnston v TAFE NSW [2019] NSWCATAD 152, at [40]. 2. I find nothing in the evidence to show an absence of independence on the part of Ms Nokes in the provision by her of legal advice, so as to disallow the Respondent's claim for legal professional privilege. I accept her evidence as to her independence in providing the advice she did. 3. I accept that when a government lawyer receives legal advice from an external adviser (as in the present case) and reproduces that advice, parts of the advice or a summary of that advice for their client, what the government lawyer communicates to their client in these circumstances, may itself remain the subject of legal professional privilege. I do not see any reason why, on the facts of the matter, the communications contained in the reproduction or summary of advice received by Ms Nokes from external lawyers should not also be protected by legal professional privilege, in the same way in which her own advice is protected. 4. The involvement of the relevant team in the preparation of the briefs and the legal advice contained within the briefs also requires consideration. The Applicant submitted that there was no evidence to identify the qualifications of any person who prepared the material in dispute or the dominant purpose for which the material was prepared. In this regard, the Applicant raised questions as to whether a legal officer had a hand in creating the information in question. There was also no evidence, in the Applicant's submission, that the material was or continued to be confidential. In the Applicant's submission, copying the material to the "team" was inconsistent with a claim for legal professional privilege. 5. Ms Nokes' evidence was that the team deployed on the project in question was copied on all correspondence pertaining to legal advice. She also said that the relevant material had been treated as confidential by the Respondent and had not been "widely distributed" within the Department of Education. To her knowledge, the information had not been distributed, other than to the Deputy Premier and to their office and lawyers engaged by the Respondent. 6. There is no evidence as to who the actual personnel who prepared the briefing documents were, other than that they were prepared by the relevant "team" and reviewed by Ms Nokes. It appears that the team in question may have included personnel who were not lawyers. It can be inferred that whoever did prepare these documents had access to the advice provided by external or internal lawyers. 7. To the extent that the team in question included personal who were not lawyers providing independent legal advice, the particular question is whether the handling by the team of the legal advice in question and its reproduction in the briefing documents in question, can displace the Respondent's claim for legal professional privilege. 8. I do not think that the mere fact of handling and summarising legal advice by personnel who are not lawyers would, of itself, displace client legal professional privilege. Section 118 of the Evidence Act expressly contemplates that a confidential document may be prepared by the "client, lawyer or another person" (emphasis added). Section 119 is also not expressed to limit the categories of persons who may prepare a communication it protects. It has been accepted that if an officer of a company had summarised confidential legal advice for the benefit of the board of directors, that summary would remain privileged (Standard Chartered Bank of Australia Ltd and Another v Antico and Ors (1993) 36 NSWLR 87, at 93). If the dominant purpose of a confidential communication was the provision of legal advice, the handling of that advice by personnel who are not lawyers, as may have happened in the present case, does not, of itself, allow for a conclusion that confidentiality is lost or that the dominant purpose ceases to be the provision of legal advice. 9. In the normal course of their operations, where a large organisation receives legal advice, it may pass through the hands of numerous persons within the organisation who are not lawyers, including for the purposes of preparing minutes and summaries for consideration by the decision makers within the organisation. It is difficult to see how these circumstances can, of themselves, result in a conclusion that the dominant purpose ceases to be the provision of legal advice or that confidentiality is lost. 10. A "client" is defined to include a "person or body who engages a lawyer" in s 117 of the Evidence Act. In these circumstances, I do not see how the handling or use of legal advice by the personnel employed or otherwise retained by the "person or body" for the purposes of legal proceedings, whether the personnel are lawyers or not, could either breach confidentiality or otherwise prevent a claim for client legal professional privilege. Disclosure of advice for purposes other than the provision of legal advice by personnel within the organisation may result in a loss of confidentiality. There is no evidence that the relevant communications within the briefs in question were so disclosed, subject to the matters considered at [79] to [82] below. 11. I accept the evidence of Ms Nokes that the information in issue remained confidential at all relevant times, when dealt with by her or her team. I find, as a result, that the information in issue was contained in a "confidential document" and that the person preparing it was under an express or implied obligation not to disclose its contents. I also do not find anything in the circumstances to displace the conclusion that the dominant purpose of the information in issue remained the provision of the legal advice. 12. The Applicant further submitted that Information of a commercial or strategic nature cannot be the subject of a claim for privilege (Standard Chartered Bank of Australia Ltd and Another v Antico and Ors (1993) 36 NSWLR 87, at 93). The Applicant further submitted that when legal advice is summarised and discussed for the purpose of making a commercial decision, privilege does not attach (at 93). 13. I accept that the briefs in question contain information that may be of a strategical commercial nature and is not a subject matter protected by legal professional privilege. However, these documents have been or could be provided to the Applicant subject to the relevant redactions. 14. For the reasons set out above, I am satisfied that the material that has been redacted is protected by legal professional privilege by reason of s 119(b) or otherwise s 118(c) of the Evidence Act. Has there been a waiver of legal professional privilege? 1. A person who has the benefit of legal professional privilege may waive that privilege. It is the client who is entitled to the benefit of confidentiality and who may relinquish privilege. It is the inconsistency between the conduct of a client and the maintenance of confidentiality which effects a waiver of privilege. This may happen when a client discloses the "client's version" of advice (Mann v Carnell, at [28]). Waiver may be express or implied (Mann v Carnell, at [29]). 2. Legal advice was, on the evidence, communicated on a number of occasions. It was communicated to: 1. the Deputy Premier; 2. The Department of Planning and Environment; 3. the Member for Monaro; and 4. the Applicant's agent by the Member for Monaro. 1. The consequences of each of the communications set out at [65] above requires consideration. 2. Section 122(5) of the Evidence Act provides: "(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because-- (a) the substance of the evidence has been disclosed-- (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law, or (iv) if the client or party is a body established by, or a person holding an office under, an Australian law--to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court". 1. The Respondent's submission is that the Deputy Premier is and was at all relevant times the Minister for Education and Early Learning with responsibility for the Respondent, and that legal professional privilege was not lost as a result of the disclosure of the information in question to the Deputy Premier. The Applicant relies on subsection 122(5)(a)(iv). 2. There was no dispute that the Respondent was "…. a person holding an office under, an Australian law" and that the Deputy Premier was the Minister administering the relevant law. I accept the Respondent's submission and do not consider that the provision of legal advice to the Deputy Premier, who was the Minister responsible for the Respondent at the relevant times, resulted in a waiver of legal professional privilege (see also Mann v Carnell, at [16]). 3. Both the Respondent and the Department of Planning and Environment ("DPE") were respondents in the LEC proceedings. The evidence was that legal advice related to the prospects of succeeding in those proceedings was shared between them. In the Respondent's submission, both respondents had a common interest relating to the LEC proceedings and there was no loss of legal professional privilege as a result of the Respondent and the second respondent in the LEC proceedings sharing legal advice, by reason of s 122(5)(c) of the Evidence Act. 4. I accept that "common interest" privilege attaches in the circumstances and that the sharing of information between the two respondents to the LEC proceedings did not result in a waiver of legal professional privilege. 5. Questions arise as to the consequences of the provision of the relevant advice concerning the LEC proceedings to the Member representing the electoral district of Monaro in the Legislative Assembly. The Applicant submitted that the Member for Monaro was not a client of the Respondent's internal lawyers, had no formal relationship with the Respondent and was not a member of the Cabinet or the Minister responsible for overseeing the Respondent. The Applicant submitted that the Tribunal should infer that the Member for Monaro was in possession of confidential legal advice obtained by the Respondent in relation to the project in question and that such advice was obtained from the Minister for Education and Early Learning or officers of the Respondent. In each case, in the Applicant's submission, the circumstances were inconsistent with the maintenance of privilege. 6. In Mann v Carnell, the High Court, considered the consequences of disclosure of legal advice conveyed by the Chief Minister of the Australian Capital Territory to Mr Moore, a member of the Legislative Assembly of the territory. The High Court gave the following description of the arrangements under which members of a legislature in Australia could receive confidential information: " …. it was established practice in the legislature of the Australian Capital Territory, and in other Australian legislatures, for Ministers, in appropriate cases, to provide members, confidentially, with background information concerning matters of Government administration. This practice assisted members of the legislature to be fully informed on issues of interest to them, and assisted Government Ministers seeking to satisfy the concerns of members, without the necessity of ventilating, in an open and adversarial context, matters which were capable of appropriate explanation. Mr Moore gave evidence that, from time to time, he sought and obtained information from the Chief Minister on a confidential basis, and that he regarded this as a useful method of discharging his responsibilities. The arrangement was relatively informal, but, if it appeared that the Chief Minister desired that information provided to him in that fashion should remain confidential, then he would respect her wishes, without compromising his capacity to pursue the subject in other ways if necessary". 1. In determining that legal professional privilege attached to the communications in question, the High Court majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) said, at [35]: "The purpose of the privilege being to protect the Territory from subsequent disclosure of the legal advice it received concerning the litigation instituted by the appellant, there was nothing inconsistent with that purpose in the Chief Minister conveying the terms of that advice, on a confidential basis, to a member of the Legislative Assembly who wished to consider the reasonableness of the conduct of the Territory in relation to the litigation". 1. I accept that the Member for Monaro received the content of some of the legal advice in question. I accept the evidence of the Applicant as to the conversation he says took place between the Member for Monaro and the Applicant's agent on 4 May 2023, as recorded in an email of that date. In that conversation, the Member for Monaro is said to have described aspects of the legal advice. 2. There is no specific evidence as to the circumstances in which the Member for Monaro was informed of the content of the legal advice in question. Ms Nokes' evidence is that she did not know about the circumstances in which the Member for Monaro came to know of the legal advice provided to the Respondent in relation to the LEC proceedings. 3. I am not, however, of the opinion that the provision of the contents of the legal advice in question to the Member for Monaro resulted in a waiver of legal professional privilege, having regard in particular to the practices in Australia for the confidential sharing of legal advice with Members of Parliament described by the High Court in Mann v Carnell. The project in question was situated within the electoral district represented by the Member for Monaro. There is evidence that, as the member of the Legislative Assembly representing Monaro, the Member for Monaro had been dealing with inquiries from his constituents concerning the school project and the litigation surrounding that project. I infer that the sharing of information with him occurred against this background, in accordance with practices in Australia for the sharing of confidential information with members of legislative bodies. 4. The Applicant submits that there has been an implied waiver of privilege, relying on the telephone conversation that took place between the Applicant's agent and the Member for Monaro on 4 May 2023. The Applicant claims that in this conversation, the Member for Monaro stated that the Respondent's legal advice was that in the LEC proceedings, the applicant in that case opposing the school project in issue, would not succeed against the Respondent. The Respondent intended to continue "pressing on" with the project. These matters were recorded in an email prepared at about the time of the conversation. That email was in evidence with certain redactions. 5. The Applicant's evidence included a record of other matters allegedly communicated by the Member for Monaro but not included in the contemporaneous email. This included an alleged statement that in the event that the Respondent was not successful, the legal advice was that it could expect to obtain an order allowing it to" fix things". The Applicant believed that this may have been a reference to action under s 25B of the Land and Environment Court Act 1979 (NSW). The Member for Monaro also allegedly said that the Department of Planning had legal advice that was "less confident that the respondents would succeed". The Applicant submitted that the inconsistency between this disclosure of advice and the maintenance of confidentiality would bring about a waiver or loss of privilege. 6. The Respondent, on the other hand, submits that what transpired in the telephone conversation in question was merely an expression of views regarding the legal proceedings and the Respondent did not know how those views were formed. 7. I accept the evidence of the Applicant as to the contents of the discussion that occurred between the Member for Monaro and the Applicant's agent as recorded in the contemporaneous email in evidence. The evidence of what transpired in that conversation includes the Respondent's assessment of the prospects in the matter. That evidence specifically was that the Respondent's legal advice was that they did not think that the applicant in the LEC proceedings will succeed. 8. [NOT FOR PUBLICATION] 9. [NOT FOR PUBLICATION] 10. [NOT FOR PUBLICATION] 11. [NOT FOR PUBLICATION] 12. It cannot be assumed that the simple fact of disclosure of communications the subject of legal professional privilege necessarily results in waiver without an intention to waive (Mann v Carnell, at [30]). There was no evidence from the Member for Monaro adduced in the proceedings as to what his intention was. However, in the absence of any such evidence, I am unable to find that waiver of legal professional privilege was not intended, having regard to the fact of the communication in question having occurred. The redactions identified as LPP 3 and LPP 10 are, in my opinion, not protected from disclosure by reason of that waiver of legal professional privilege. 13. Certain items of information were redacted on the grounds that they are "personal information". The Respondent identified the following public interest consideration against disclosure, set out in s14 of the GIPA Act, that they say applies. "3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects— (a) reveal an individual's personal information, ……" 1. What is "personal information" is defined in clause 4 of Schedule 4 of the GIPA Act in the following terms: "Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following— (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and nonpersonal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, 1. I accept that names, telephone numbers and email addresses of individuals in the circumstances of the matter, amount to "personal information". 2. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. I attach considerable weight to the public interest consideration against disclosure of personal information in the circumstances at hand. I attach less weight to public interest considerations in favour of disclosure of information set out s 15 of the GIPA Act. I do not see how the disclosure of personal information in the case at hand, can in any real way promote open discussion of public affairs, enhance Government accountability, contribute to positive and informed debate on issues of public importance or promote any other matter weighing in favour of disclosure. 3. The decision of the Respondent to make redactions of information of this kind to documents it has disclosed is therefore the correct and preferable decision. Accordingly, the decision to redact the information in Redactions 3(a) and (b) is the correct and preferable decision. 4. The Respondent also has determined to release certain information specified in paragraph 38 of their written submissions in this matter, filed on 20 August 2023. The decision to do so is affirmed. Conclusions 1. The conclusions of the Tribunal are as follows: 1. The decision to redact the information in Redactions LPP 3 and LPP 10 is not justifiable on the basis of any claim for client legal professional privilege, that privilege having been waived. 2. The decision to redact the information in other redactions described as "LPP" is justifiable on the basis of the Respondent's claim for legal professional privilege. 3. The decision to redact the information in Redactions 3(a) and (b) should be affirmed. 4. The decision to release information made by the Respondent in the course of these proceedings should be affirmed. 1. The orders are as follows. Orders 1. The administratively reviewable decisions of the Respondent are set aside. 2. The decision to release information made by the Respondent in the course of these proceedings is affirmed. 3. The decision to redact the information in Redactions 3(a) and (b) is affirmed. 4. The administratively reviewable decisions of the Respondent are otherwise remitted to the Respondent for reconsideration in accordance with these reasons. 5. Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION and information in evidence found to be the subject of client legal professional privilege, are not to be published or disclosed to the Applicant or the public. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 09 December 2024 - Typographical correction - Name of Ms Simone Nokes amended throughout. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2024