Coroneo v Woollahra Municipal Council [2006] NSWADT 286

CITATION: Coroneo v Woollahra Municipal Council [2006] NSWADT 286

DIVISION: General Division

APPLICANT PARTIES: Nicky Coroneo RESPONDENT Woollahra Municipal Council

FILE NUMBER: 053256

HEARING DATES: 8/06/2006

SUBMISSIONS CLOSED: 06/08/2006

DATE OF DECISION: 10/03/2006

BEFORE: Pearson L - Judicial Member

CATCHWORDS: access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Freedom of Information Act 1989

Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 Director General, Attorney-General's Department v Cianfrano [2006] NSWADTAP 303 CASES CITED: General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 O'Hara v North Sydney Council [2005] NSWADT 100 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 Trade Practices Commission v Sterling (1979) 36 FLR 244

APPLICANT V Dominello, solicitor REPRESENTATION: RESPONDENT A Horvath, barrister

ORDERS: Decision under review affirmed

REASONS FOR DECISION 1 On 24 March 2005 the applicant requested access under the Freedom of Information Act 1989 (FOI Act) to: … all files, pertaining to the dispute between 100 Hopetoun Avenue, 102 Hopetoun Avenue and the Council over the stone retaining wall situated near the boundary of 100 and 102 Hopetoun Avenue Vaucluse. For my search I would like to include (amongst any other connected or ancillary files) Council's files on DA 43/2002, BC 175/02, DA 659/2002, Council Order dated 29 October 2002 to Woodley and Coroneo and Council order 437/2002 dated 16 September 2003 to Woodley. 2 On 13 April 2005 Mr Les Windle, Manager Governance, responded, stating that he had reviewed Council files DA 02/0043, CC 02/0043, BC 02/175, 240.100 and 240.101. Files DA 659/2002 and CC 02/0659 could not be located. Mr Windle granted access to the Orders dated 29 October 2002 and 16 September 2003; granted access to files DA 02/0043, CC 02/0043, BC 02/175, and to a number of documents from file 240.100 Part 1 (Property File relating to 100 Hopetoun Avenue) with three restrictions; and refused access to a number of other documents from file 240.100, file 240.102 (Property File relating to 102 Hopetoun Avenue) and Legal File P105/002. Exemptions were claimed under clause 10 of Schedule 1 of the FOI Act. 3 On 8 May 2005 the applicant requested review. An internal review was conducted by Mr Geoff Clarke, Director Corporate Services. Mr Clarke confirmed the original determination to deny access to part of three documents on File 240.102 Part 1 (letters dated 2 July 2004 and 10 May 2004, email dated 19 March 2004); approved access to a letter dated 2 February 2004 on file 240.102; and approved access to some of the documents on file P105/02. Exemptions were claimed under clauses 10, 7 and 9 of Schedule 1. 4 The applicant requested review of these determinations. 5 At a Planning Meeting held on 24 August 2005 the respondent's representative indicated that the files DA 659/2002 and CC 02/0659 had been located, and access had been granted. The Council had reassessed the documents for which exemptions had been claimed and determined that access could be provided to some of those documents. 6 After further planning meetings, the scope of the matter was narrowed to some 30 documents. The respondent categorised these 30 documents under 5 headings: Category A: Council documents prepared in contemplation of litigation - documents 20, 43, 49, 50, 54, 58, 74 Category B: Correspondence between Philips Fox and Council containing instructions or advice -documents 21, 23, 25, 26, 28, 59, 66, 68, 69, 70 Category C: correspondence between Philips Fox and Council (and its agent) in contemplation of litigation -documents 67, 73, 75 Category D: Correspondence between Michell Sillar and council containing instructions or advice -documents 67, 73, 75 Category E: Personal information about a person -document 47 7 The respondent claimed that the documents in Category A, B, C and D are exempt under cl.10 of Schedule 1 to the FOI Act; that documents 49, 50 and 23 are also exempt under cl.9 of Schedule 1; that documents 67, 73 and 75 are also exempt under cl.7 of Schedule 1; and that document 47 (Category E) is exempt under cl.6 of Schedule 1. Relevant legislation 8 Under s16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. The FOI Act imposes limitations on that right, in particular s25(1), under which an agency may refuse access to a document if it is exempt. Under s25(4) an agency is not to refuse to give access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter ahs been deleted, and it appears to the agency that the applicant would wish to have access to such a copy. 9 Schedule 1 contains the provisions under which certain categories of documents are exempt. The relevant provisions in this matter are clauses 6,7, 9 and 10: 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 7 Documents affecting business affairs (1) A document is an exempt document: (a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and (ii) could reasonably be expected to destroy or diminish the commercial value of the information, or (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. (2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made. 9 Internal working documents (1) A document is an exempt document if it contains matter the disclosure of which: (a) would disclose: (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and (b) would, on balance, be contrary to the public interest. (2) A document is not an exempt document by virtue of this clause if it merely consists of: (a) matter that appears in an agency's policy document, or (b) factual or statistical material. 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. Factual background 10 The factual context is provided in a letter dated 4 September 2004 from the solicitors representing the applicant to the respondent (Exhibit A). In summary, this matter arises in the context of a dispute between the applicant and her neighbour concerning a stone retaining wall between the properties, and commenced in early June 2002 when the neighbour commenced work on his land connected with excavation for a swimming pool. According to the letter, the applicant contacted the council on 3 June 2002 to notify that the wall was being destabilised. There were subsequent discussions, and correspondence, between the applicant and the respondent, including issue of a Notice of Intention to Give and Order on 11 June 2002. On 21 October 2002 the respondent advised the applicant that it proposed issuing an order requiring the applicant and the neighbour to repair the stone wall. An order was issued on 29 October 2002, following which the applicant commenced proceedings in the Land and Environment Court seeking a declaration that the order be revoked. The respondent revoked the order on 6 June 2003, and the Land and Environment Court proceedings were withdrawn on 8 September 2003, with costs to be agreed or assessed. In the letter dated 4 September 2004 the applicant's solicitors assert that the respondent's conduct in issuing the order amounted to negligence, breach of statutory duty and misfeasance of public office, and outline particulars of damage claimed. 11 I find, based on the letter of 4 September 2004, that the dispute between the applicant and her neighbour, and the respondent's involvement in that dispute, commenced in June 2002; that the respondent issued an order on 29 October 2002 following which the applicant commenced proceedings in the Land and Environment Court; that those proceedings were withdrawn on 8 September 2003, following which there was an assessment of costs; and that on 4 September 2004 the applicant notified the respondent that she was intending to commence proceedings against the respondent seeking compensation. Legal professional privilege 12 The respondent relied on paragraphs 51 to 54 of the letter of 4 September 2004, which state: We are instructed that based on the matters raised in this letter our client prepares to commence proceedings against Council. However prior to doing so, our client would like Council to respond to the matters contained in the letter. We look forward to Council's response within 28 days from the date of this letter, failing which our client will commence proceedings without further notice. Further, if this becomes necessary our client will rely upon the letter as the issue of costs including costs on an indemnity basis: Colgate Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. Finally, we note that on or about 6 July 2004 our client received a cheque from Council for an amount of $878.00 representing partial compensation for Council's conduct in this matter. As is plain from the contents of this letter, our client does not regard this payment as adequate compensation. 13 The respondent submitted that documents 20, 43, 49, 50, 58, and 74 in Category A relate to threatened legal proceedings, and that document 54 in Category A relates to the proceedings in the Land and Environment Court. While those proceedings had been withdrawn before document 54 was created, the issue of costs continued. The Category B documents fell into two categories: documents 23, 25, 26, 59, 68 and 70 were prepared for the purpose of seeking legal advice, and documents 21, 28, 66 and 69 were prepared for the purpose of providing legal advice. The Category C documents include correspondence between the council, its insurance broker, and legal advisors, and in this context the insurance broker was acting as agent. The Category D documents fall within 3 categories: document 53 was prepared for the purpose of instructing Council's solicitors; documents 52, 57, 76 and 93 are advice from the solicitors to Council; and documents 55, 80, 83 and 90 were prepared within the context of threatened litigation. 14 The applicant submitted, relying on the decision of the Court of Appeal in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, that evidence of the retainer is necessary in order to determine whether litigation is contemplated and the documents fall within the privilege. In relation to document 67, the applicant submitted that correspondence between the insurance broker and Council would not be caught by the litigation privilege. In relation to documents 53 and 55, a document simply copied to the Council's lawyer would not necessarily fall into the category of legal advice. In further submissions it was clarified that the top of document 53 is the end of document 55. 15 The principles to be applied in determining whether cl.10 applies to any of these documents are the common law principles of legal professional privilege: Director General, Attorney-General's Department v Cianfrano [2006] NSWADTAP 303. These principles were summarised by Higgins JM in O'Hara v North Sydney Council [2005] NSWADT 100 at paragraphs 43 and 44 in the following terms: 43… (a) legal professional privilege arises from a lawyer/client relationship and is the privilege of the client; (b) the privilege applies to "confidential communications" between the lawyer (as legal advisor) and the client where the dominant purpose of the communication is either: (i) to enable the legal advisor to give or the client to receive legal advice; or (ii) to be used in pending or contemplated proceedings. In such cases, confidential communications with third parties (non-agent third party) may also be privileged if they are for use in such proceedings (see [Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135] at [37] and [Law Society of NSW v General Manager, WorkCover Authority of NSW (GD) [2004] NSWADT 40] at [27]). (c) the privilege also applies to confidential communications between government agencies and their salaried legal officers which were undertaken for the dominant purpose of obtaining or giving legal advice or for pending or contemplated litigation (see Waterford v Commonwealth (1987) 163 CLR 54 at 62 and 73); (d) the privilege extends to advice which is of a non-legal character where that non-legal advice is connected to the giving of legal advice or for contemplated or pending litigation (see Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 550; Waterford (supra) at 66; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246); (e) the privilege extends to copies of documents that are not privileged where the copy is made for the dominant purpose of obtaining legal advice or for use in pending or contemplated litigation (see Australian Federal Police (supra) at 509 and 597). (f) the privilege does not attach to documents that evidence transactions such as contracts, conveyances, declarations of trust, etc, even if they are delivered to a solicitor or counsel for advice or use in litigation (see Baker v Campbell (1983) 153 CLR 52 at 86, 112 and 122-123); (g) any extension of the scope of the privilege must not go beyond the rationale for the privilege (see Law Society of New South Wales (supra) at [33-35] and the authorities cited therein). That rationale being "the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client" (see Fagan v State of New South Wales [2004] NSWCA 182 at [71]; (h) the privilege is waived if the confidential communication is disclosed to a third party, either expressly or inadvertently (see Mann v Carnell (1999) 201 CLR 1; Goldberg v Ng (1995) 185 CLR 83 and Attorney General (NT) v Maurice (1986) 161 CLR 475). 44 The authorities constantly emphasise that for a document to attract the privilege it must be established that it came into existence for and was prepared for the obtaining or giving of legal advice or for use in pending in contemplated litigation (see O'Reilly v Commissioner of State Bank of Victoria (1982) 153 CLR 1 at 22). As mentioned above, following the decision in [Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49], this need not be the sole purpose for which the document came into existence but it must be the dominant purpose. 16 In Trade Practices Commission v Sterling (1979) 36 FLR 244 Lockhart J described the categories of legal professional privilege as follows (citations omitted): Legal professional privilege extends to various classes of documents including the following: (a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. (b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. (c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. (d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. (e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. (f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. (g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent. 17 As noted above, the applicant submitted that evidence of the terms of the retainer is needed in order to determine whether communication is made in contemplation of litigation. The respondent's submission in response was first, that this proposition arose in the particular circumstances of the WorkCover case, and secondly, that legal professional privilege is not limited to circumstances where litigation is contemplated, and includes the provision of legal advice more generally. 18 WorkCover was an appeal to the Court of Appeal from a decision of the Appeal Panel which, in part, held that the Judicial Member whose decision was the subject of the appeal had erred in concluding that certain disputed documents were subject to legal professional privilege. WorkCover had tendered the disputed documents as a confidential exhibit before both the Judicial Member and the Appeal Panel, but did not consent to the Court of Appeal inspecting the documents. The terms of the retainer were before the Court of Appeal. McColl JA noted: 88 …The terms of the retainer are before this Court and, in my view, the Appeal Panel's characterisation of it was correct. The importance of a legal practitioner's retainer in determining whether or not their communications with clients were brought into existence for the dominant purpose of giving legal advice is self-evident and was emphasised both by Allsop J in DSE (at [52]) and in the passage from The Sagheera to which his Honour referred (at [58]). 89 The Appeal Panel also concluded (at [44]) whether by reference only to its opinion about the nature of Ms Castle's retainer, but most probably also by reference to its examination of the disputed documents, that the nature of Ms Castle's advice concerned operational and equity issues, of a "work value character" (at [50]). 19 McColl JA had earlier referred to the decision of the High Court in Grant v Downs (1976) 135 CLR 674 in emphasising the importance of inspection of the documents in dispute, noting that "legal professional privilege is 'not necessarily or conclusively established by resort to any verbal formula or ritual'", and noted that inspection of the documents determines whether the privilege is properly claimed. I do not read WorkCover as standing for the proposition that it is essential to examine the terms of the retainer to determine whether or not documents are subject to legal professional privilege. Rather, the central issue concerns the content of the documents themselves, and in the context of this review I have examined the documents in dispute. 20 Witness statements were provided by staff of the respondent who were the authors of several of the documents: Luke Oldfield, Senior Building and Compliance Officer (documents 83, 90, 53, 80, 53 and 54); Brett Daintry, Manager of Development Control (documents 23, 25, 26, 49, 55, and 68), Claire Martyn, Risks Officer (documents 43, 58, 59, and 70); Cheryle-Anne Burns, Manager of Risk Control and Safety Services (document 74), Allan Coker, Director of Planning and Development (document 20), and Timothy Tuxford, Compliance Manager (document 50). None of the witnesses was required for cross examination. I have relied on these statements, together with the content of the relevant documents, to clarify the purpose of the preparation of the documents to which they relate. 21 I have examined the documents provided by the respondent to the Tribunal on a confidential basis. I note that the Schedule does not accurately describe two of the documents. Document 49 is a list headed "Brett Daintry emails" dated until 23 November 2004, not after 23/11/04. Document 58 is a copy of document 50, the filenote prepared by Tim Tuxford, and is not a filenote prepared by Claire Martyn. Category A Documents 22 In his witness statement Alan Coker states that he is the author of document 20, and that his dominant purpose in preparing this document was "to request the preparation of certain information for forwarding to Council's solicitors to enable them to provide advice to Council on the threatened legal proceedings". Having examined document 20, I am satisfied that it was prepared in response to the threatened litigation notified in the letter of 4 September 2004 in order to provide material for the respondent's solicitors, and falls within Lockhart J's class (d) in Sterling. I am satisfied that documents 43 and 50 also fall within that class. 23 The purpose behind the preparation of document 49 is not apparent on its face, and is clarified by the witness statement of Brett Daintry, who states that his dominant purpose was "to provide information to Council's solicitors to assist them to provide advice to Council on the appropriate action to take in relation to the threatened claim". I am satisfied that this document also falls within Lockhart J's class (d) in Sterling. 24 Document 74 appears to be related to document 75, and is a response to request for instructions. In her witness statement, Cheryle-Anne Burns states that her dominant purpose in preparing the document was "to approve the instructions detailed in the document that were to be given to Council's solicitors in relation to the threatened legal proceedings against Council". I am satisfied that this document falls within Lockhart J's class (d) in Sterling. Category B and Category D Documents 25 Having examined the documents, I am satisfied that documents 21, 23, 25, 26, 28, 59, 66, 69, and 70 are communications between the respondent and Phillips Fox with a view to obtaining or giving legal advice, and fall within Lockhart J's class (a) in Sterling. 26 Similarly, documents 52, 53, 54, 55, 57, 76, 80, 83, 90, and 93 are communications between the respondent and Michell Sillar with a view to obtaining or giving legal advice, and fall within Lockhart J's class (a) in Sterling. 27 Document 68 is an internal council email, commenting on the email from Phillips Fox to the respondent which is document 69. In his witness statement, Brett Daintry notes that this should have been described in the Schedule as "Council staff to Council staff", and states that his dominant purpose in preparing the document was "to provide a comment on the advice received from Council's solicitors on the possible legal position of Council in relation to the threatened claim". I am satisfied that this document was prepared as part of the process of providing instructions in relation to the threatened claim, and falls within Lockhart J's class (d) in Sterling. Category C Documents 28 Document 67 is a communication from JLT, the respondent's insurance broker, to the respondent. It contains communications made to the respondent's solicitors by JLT, and in that context, was acting as the respondent's agent. This document falls within Lockhart J's class (a) in Sterling. 29 Document 73 is a communications between the respondent's solicitors and JLT, copied to the respondent, and document 75 is a response to that communication. I am satisfied that these communications were made with a view to giving legal advice and confirming instructions, and that JLT was acting as agent of the respondent. These documents also fall within Lockhart J's class (e) in Sterling. 30 It follows that I agree with the respondent's claim that documents 20, 21, 23, 25, 26, 28, 43, 49, 50, 52, 53, 54, 55, 57, 58, 59, 66, 68, 69, 70, 67, 73, 74, 75, 76, 80, 83, 90 and 93 contain matter that would be privileged from production in legal proceedings on the ground of legal professional privilege, and thus fall within cl.10 of Schedule 1 to the FOI Act. There is no evidence to suggest that the privilege has been waived. I am satisfied that these documents are exempt documents. This conclusion makes it unnecessary to decide whether any of the documents would also be exempt under the other exemptions claimed, and I make no findings in that regard. Personal Affairs 31 The respondent submitted that part of document 47 concerned the personal affairs of a person and that disclosure of the masked part of that document would be an unreasonable disclosure of information concerning that person's personal affairs. The applicant submitted in response that the issue is about transparency of Council decision-making. 32 I heard further submissions on this document in the absence of the applicant and her representative. 33 In Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin's case), Kirby P held that the words "personal affairs" mean "the composite collection of activities personal to the individual concerned". Without disclosing the nature of the information contained in document 47, I am satisfied that it is information concerning the personal affairs of the person identified in it. The next issue to consider is whether disclosure of this information would be "unreasonable". In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the Administrative Appeals Tribunal held that this requires "consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance." The Tribunal went on to state that the public interest recognised by the FOI Act in the disclosure of information in documentary form held by an agency must be balanced against the public interest in protecting the personal privacy of a third party. I am satisfied that the particular information is not of any current relevance, and that, given the context in which it was recorded, the person to whom it relates would not wish to have it disclosed. I am satisfied that the public interest in the protection of the personal privacy of the person concerned would outweigh any more general public interest in transparency of government, and that disclosure of this information would be an unreasonable disclosure of information concerning the person's personal affairs. 34 I agree with the decision of the respondent to provide access to a copy of document 47, subject to deletion of information concerning the personal affairs of the person identified in it. Order 35 Decision under review affirmed.