Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Law v Wollondilly Shire Council [2013] NSWADT 203 Hearing dates: 8 March 2013 Decision date: 16 September 2013 Jurisdiction: General Division Before: P H. Molony, Judicial Member Decision: The decision of the Council is affirmed Catchwords: Government information Public Access - conclusive presumption against release of information subject to client legal privilege - litigation privilege - client legal privilege - waiver - without prejudice privilege Legislation Cited: Administrative Decisions Tribunal Act 1997 Local Government Act 1993 Government Information (Public Access) Act 2009 Cases Cited: AWB v Cole [2006] FCA 1234 Balabel v Air India [1988] Ch 317 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 DSE (Holdings) Pty Ltd v Intertan Inc (2003) FCR 151 FCT v Pratt Holdings at 279-280 Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367 Jones v Millward [2005] 1 Qd Rt 498 Kirby v Centro Properties No 2 [2012] FCA 70 Mann v Carnell (1999) HCA 66 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 Tickell v Trifelska Pty Ltd (199) 25 NSWLR 352 Woolley v Lismore City Council [2013] NSWADT 10 Category: Principal judgment Parties: Applicants - Raymond and Susan Law Respondent - Wollondilly Shire Council Representation: Applicant - M Tyson Respondent - M Allars Applicant - T H Walker Respondent - Lindsay Taylor Lawyers File Number(s): 123133 Publication restriction: Nil REasons for decision Introduction 1Mr and Mrs Law have made an application to the Tribunal to review a decision made by the Wollondilly Shire Council (Council) under the Government Information (Public Access) Act 2009 (the GIPA Act), dated 9 December 2011, to refuse them access to a report known as, "The Dr Lindsay Taylor report into the Street Sweeping Tender" (the Taylor report). Access to the Taylor report was refused on the basis that it is the subject of client legal privilege, and as a consequence the subject of a conclusive presumption of an overriding public interest against disclosure: s 14(1) and Schedule 1. 2Mr and Mrs Law sought review of that decision by the Information Commissioner. On 16 November 2011 the Information Commissioner advised, inter alia - We have considered submissions made to us by Council and Mr Law regarding whether the Report is subject to legal professional privilege. In our view, Council has made valid arguments regarding the applicability of clause 5 of schedule 1 to the Report. However, based on the evidence submitted to us, we cannot definitively state whether the Report attracts legal professional privilege because we are not entirely satisfied that the dominant purpose for the creation of the information contained within the Report was for Council to obtain legal advice and/or for use in litigation. We are unable to test the evidence that has been provided to us by the parties, and as such we can neither uphold or recommend against Council's decision that there is a conclusive presumption of an overriding public interest against disclosure of the Report under clause 5(1) of schedule 1 of the GIPA Act. 3Consequently Mr and Mrs Law sought review of the decision in this Tribunal. Material before the Tribunal 4In making this determination the Tribunal has considered the following material: * Statements of Raymond John Law dated 10 August 2012 and 2 October 2012. * Statement of Susan Law dated 10 August 2010 and 2 October 2012. * Statement of Judith Hannan dated 9 August 2012. Ms Hannan at all material times was an elected Councillor of the Council. * Statement of Alison Nancy Dench dated 17 July 2012. Ms Dench was at all material times an Assistant or Deputy General manager of the Council. * Statement of John Sproule dated 16 July 2012. Mr Sproule was at all material times the Manager - Governance at the Council. * Statement from Christopher John Campbell dated 16 July 2013. Mr Campbell is a solicitor employed by Lindsay Taylor Lawyers, who are acting for the Council of this proceeding. * Open and closed versions of another statement from Christopher John Campbell dated 21 August 2012. * Council's submission dated 16 July 2012. * Mr and Mrs Law's submissions dated 16 August 2012. * Council's submission in reply dated 21 August 2012. * Mr and Mrs Law's rejoinder received 2 October 2012. * Council list of objection to Mr and Mrs Law's evidence. * Mr Law's submissions regarding the closed statement of Mr Campbell and objections to the Council's evidence. * Council's response to those objections and submissions. 5I have also had regard to and read a confidential copy the Taylor report. 6The Information Commissioner has a right to appear and be heard in relation to reviews by the Tribunal, but did not exercise that right in this case. Outline of the Evidence 7Mr and Mrs Law have provided street sweeping services to Council for more than 20 years. On 3 March 2009 Council invited tenders for a new street sweeping contract. Mr and Mrs Law were among the four tenderers for that contract. 8The tenders were then considered by a tender evaluation panel consisting of Council officers. A report on the tenders, containing a recommendation that Mr and Mrs Law's tender be accepted, was prepared for a Council meeting on 15 June 2009. The report and details of the tenders were placed on the Council web-site before the meeting. This led to Mr Law being alerted to the recommendation and attending Council's meeting. Council accepted the recommendation and voted to accept Mr and Mrs Law's tender. Mr Law says he was congratulated by one of the Councillors. 9On 17 June 2009 Council received a complaint about the tender process from an unsuccessful tenderer. No further steps were taken with respect to the tender. 10In August 2009 Council engaged a contracts manager from North Sydney Council, Mr John Thompson, to undertake an external review of the tender process. Around the same time Council sought legal advice regarding the complaint from Marsdens lawyers. 11Following consideration of Mr Thompson's report, and of legal advice, Council officers reported to the meeting of the Council held on 16 November 2009. They recommended that the Council resolve to rescind the decision to award the tender contract to Mr and Mrs Law, and instead, not accept any of the tenders. 12As a consequence of these events Mr and Mrs Law sought legal advice from Kells, Lawyers. 13On 14 January 2010 Kells wrote to Council advising that Mr and Mrs Law had a claim against it and alleging among other things that: (a) Council was in breach of its contract with them; (b) the purported rescission of the contract by Council was invalid; (c) the failure to enter into the contract with Mr and Mrs Law following the June resolution to award the tender to them was in breach of s 335(1) of the Local Government Act; and, (d) that Council was estopped from denying that the contract had been awarded to Mr and Mrs Law. The letter included a request for access to information under the Freedom of Information Act 1987 and required the following action - 5.1 Within 14 days of the date of this letter our clients require the WSC to: 5.1.1. acknowledge the contract with our clients to perform services; 5.1.2 take steps to rescind the resolution of 16 November 2009 rescinding the prior acceptance of our clients' tender; and 5.1.3 provide a formal instrument of agreement in respect of the services as required by clause 6.2 of the General Conditions of Contract N.P.W.C. Edition 3 (1981). 5.2 If WSC fails to comply with our clients' requirements under paragraph 5.1, we are instructed that our clients may commence legal proceedings without further notice. 5.3 Our clients reserve all rights in respect of WCS's conduct and may seek to tender this latter in any proceedings that may be commenced with a view to an award for indemnity costs. 14The Freedom of Information request was dealt with by Mr John Sproule a Council officer, and resulted in the release of the Thompson report to Mr and Mrs Law. 15There then ensued, from 5 February 2010 until 31 March 2010, a series of letters which flowed between Marsdens and Kells. Most were explicitly stated by be on a without prejudice basis. They did not advance the issue. I have read that correspondence and agree with Mr and Mrs Law's submission that - In that correspondence, no admissions, concessions or offers of settlement were made by either party. Kells continued to maintain the position that the applicants had a contract with the Council and Marsdens simply maintain the opposing position that there was no contract, throughout. 16In the meantime Council had instructed Marsdens to obtain Senior Counsels opinion. Preliminary advice was received on 2 March 2010. In late March, Mr Law says he received a phone call from Mr McMahon (General Manager of the Council) advising that a barrister had been engaged to advise, and asking if Mr and Mrs Law would hold off their solicitor until Council heard from him. Mr Law agreed to do so. 17Senior Counsel's advice was received on 29 April 2010. 18Mr Law said that he received a phone call from Mr McMahon on 30 April 2010. He advised that the barrister's advice was that the tender had been awarded to Mr and Mrs Law. He asked if Mr Law still believed that he had a contract. Mr Law replied that he did. Mr McMahon asked for time to sort out the formalities, and that Mr Law "hold off" his solicitors. In his first statement Mr Law said he agreed to do this. In his second statement he amplified this by adding that he said to Mr McMahon that he did not want to take legal action. If he had the contract he had "no intention of suing." Mr McMahon assured him that he had a contract and that "Council won't be changing its mind." 19According to the evidence of Councillor Judith Hannan, a member of the Council, at a workshop held on 10 May 2010, councillors were told that Mr and Mrs Law did have a contract. The General Manager was told to correct the situation and to pay Law's legal costs. Mr McMahon was instructed to deal with Mr and Mrs Law directly, rather than through lawyers. 20Mr Law said he was contacted by Mr McMahon the next day advising that he had been instructed to deal with him directly. He wanted to arrange a meeting to resolve all issues, including costs, before the next Council meeting. They arranged to meet on 13 November 2010. 21Mr Law said that at 7-30am on 13 May 2010 Mr McMahon rang him. Mr McMahon said that Council had been advised that a complaint had been lodged against him at ICAC. As a consequence, their planned meeting could not proceed. He would have Ms Dench replace him. Ms Dench was Assistant General Manager at that time. 22Ms Dench gave evidence that on that day she met with the Mayor and Mr John Sproule (Council's Manager - Administrative Services). The Mayor sought advice about how to deal with the ICAC letter. It was agreed that that she should get legal advice. Having received that advice, it was agreed, "that there should be an independent investigation into the events surrounding the tender process for the Street Sweeping Contract and the Council should receive further advice about the process". The Mayor asked Ms Dench to respond to ICAC, deal with the Law's and seek further advice. 23Mr Law said that Ms Dench rang him on that day and told him that Council was going to call for an investigation into the tender process, so that it could learn what went wrong. Mr Law said he was not prepared to revisit whether or not he had a contract, but Ms Dench advised that "there's no dispute about that." Mr Law expressed a desire to speak with the investigator. 24There was evidence before the Tribunal from both Ms Dench and Mr Sproule regarding their subsequent discussions about, and reasoning for, appointing a lawyer to carry out a investigate and report on the tender process. In summary those reasons were: (a) the investigation needed to be expert and independent; (b) it needed to address the legal implications generally and those that might arise given that the Laws were threatening litigation;(c) there was also a possibility of involving a former employee, who had taken part in the tender process and who had already sued Council; (d) the complaint about the tender process still remained on foot; (e) staff members involved in the tender process were seeking legal advice which raised potential issues for Council ; (f) an investigation report might inform Council's response to ICAC; (g) Council needed to address and receive advice on any issues that might be identified in the Council's tender processes; (h) the investigation had to maintain confidentiality; and (i) Council needed to be able to consider the advice privately. Mr Sproule in his evidence expressed the view that appointing a lawyer would also ensure confidentiality. 25On 18 May 2010 Ms Dench instructed Dr Lindsay Taylor of Lindsay Taylor Lawyers to conduct an investigation and advise Council. 26On 24 May 2010 Ms Dench wrote to Mr Law as follows - I am writing following our recent discussion on the Street Sweeping Contract to advise you of recent developments in this matter. I have requested an Independent Review of the tendering process in relation to this matter. I have engaged a firm from Council's Legal Panel who have had no involvement in this matter. The investigation will initially conduct a documentary review and if it is required to conduct interviews we will contact you. It is perceived the review may take up to 1 month to complete and this may well impact upon the date Council is able to consider the Street Sweeping Contract given the timeframes required to complete the investigation. Should you have any questions regarding this matter please contact me. 27It is notable that in their first statements Mr and Mrs Law described this letter as advising that the review would be conducted by "a firm from Council's panel who have no involvement in the matter." Both omitted the word "Legal" from "Council's Legal Panel." In their second statements they did not refer to this letter. 28Mr Sproule said that Dr Taylor provided legal advice to Council on 26 May 2010 at his request. Both Mr Sproule and Ms Dench said that in June Dr Taylor offered to provide advice on a legal issue associated with the street sweeping contract, which offer was accepted. Dr Taylor provided written advice on 11 June 2010. Ms Dench said that around this time Council sought advice about the 2009 tender process and Mr and Mrs Law's claims exclusively from Dr Taylor. 29On 24 June 2010 Mr and Mrs Law met with Dr Taylor. This had been arranged on 10 June 2010.They both gave evidence that Dr Taylor did not tell them that he had been engaged to provide legal advice to Council and both thought that he was "conducting the investigation in his capacity as an academic with a PhD." 30There is a remarkable similarity between the evidence of Mr Law in relation to this and other events. Both agree that: (a) Dr Taylor said he had been appointed to "get to the bottom of what went wrong in all this"; (b) Dr Taylor told them that he agreed with "the barrister's report"; (c) he thought they had "been denied natural justice"; (d) he would recommend that they get a copy of his report "so that you can understand what happened"; (e) they answered his questions and showed him their documents including a bundle of emails; and, (f) that Dr Taylor copied their emails explaining that, "Council hasn't given me any of these." Both Mr and Mrs Law said - "I would have been shocked if, during our interview, he had said he was the solicitor for the Council against us, or that his firm was acting for Council in Marsden's old role. If I had even suspected that, we would have walked away and not provided all of our emails, talked with him about the facts as we understood them, nor would we have given him our overview of the documents which provided our theory and context into what had gone on." 31Mr Law said that in early July 2010 Mr McMahon rang him asking for a letter regarding the Law's costs, so he could get it to the next Council meeting. Mr Law said it would be "whatever our legal costs are and the CPI for the year we missed." Mr McMahon said to get "reasonable figures "to him and he would "get it reimbursed". 32On 12 July 2010 Mr Law wrote a letter address to the General Manager. It said - As requested, please find herein our request for reimbursement of costs incurred re the street sweeping tender. Legal costs were: E.H. Tebutt and Sons $550 Kells The Lawyers $4765.95 Total $5315.97 In addition we are asking for a sum of $5000 which in no way covers the thirteen months of stress and in excess of one hundred hours we have spent on research, meeting with solicitors and several trips to Wollongong etc. We would also like to point out that the contract allows for an annual C.P.I. increase. As the contract was awarded over twelve months ago this increase would be now due. Using a C.P.I figure of 2%. Obtained from the R.B.A. this would indicate an increase of $4985.10 P.A. However because of the delay in implementing the contract the C.P.I. increase will now be deferred for another twelve months. In real terms this effectively leaves us with a shortfall of this amount as operating costs have increased by at least this much in the past year. In effect this means our request for only $5000 leaves virtually nothing for our aforementioned costs but as we are eager to resume the previous good working relationship with council we are willing to negate them if council deems fit to grant our request, which we hope will be accepted as mark of goodwill on our part. It is our hope that this unfortunate matter will soon be concluded and put behind us as we continue to work together to provide an appropriate service to the residents of Wollondilly Shire 33On 19 July 2010 a number of events occurred. First, ICAC advised that it would not be investigating the complaint that led to Mr McMahon standing aside. Secondly, Ms Dench reported to Council regarding the street sweeping contract. Thirdly, Council resolved to acknowledge that a contract was entered into with Ray and Sue Law, and Council agreed to be bound by that contract. Specifically Council resolved - 1. That Council acknowledges that a contract was entered into with RJ & S Law as a result of Council's resolution 135/2009 passed on 15 June 2009, and Council agrees to be bound by that contract. 2. That Council does not conduct any fresh tender process in relation to the suction street sweeping services contract 2009/09. 3. That the General Manager or his representative sign the formal instrument of agreement on behalf of Council in accordance with paragraph 2 of Councils resolution 135/2009 of 15 June 2009, as a matter of urgency. 4. That a detailed report to come to Councillors on the total costs involved in the matter. 5. That the Laws have a binding contract with Council since June 2009. 6. That Council give delegation to the General Manager to discuss and resolve issues in relation to the Street Sweeping Tender in as much they may have affected S&R Law and if necessary a Deed of Release in relation to the awarding of the tender be entered into between Council and S&R Law. 7. That a copy of this report be sent to the ICAC. 8. That a copy of Dr Lindsay Taylor's report be distributed to Councillors. 34Mr and Mrs Law attended that Council meeting. Mrs Law says she asked Mr McMahon for a copy of Dr Taylor's report. He replied. "it shouldn't be a problem." 35Mr Law says that in the following week Mr McMahon called him and asked him to come in and sign the formal street sweeping agreement. They arranged to do this on 27 July 2010. Mr Law asked what was happening about reimbursement of their costs. Mr McMahon replied - "Yeah that's all fine. I'll pay you that. I've already had the Council authorise me to pay you up to $11,000 for your costs and expenses so that's fine." 36On 27 July 2012 the formal street sweeping agreement was signed. Mr and Mrs Law were not paid their costs and expenses, and the issue was not discussed. 37On 9 August 2010 Mr Sproule requested Dr Taylor, by-email, to prepare a deed of release for Mr Law. 38On 12 October 2010 there was a meeting between Mr and Mrs Law, Mr Sproule and Ms Dench. According to Ms Dench and Mr Sproule this concerned their claim for compensation and costs, and settlement negotiations took place. Mr Law said that they were distracted from their negotiations because - "...Council arrived with a Deed of release they wanted us to sign. This was never previously raised with us. I read through the Deed but I was not prepared to sign it as the Deed seemed to be limiting our right to make a complaint to a statutory authority. Mr Law said he was happy to agree not to sue Council but would not sign a Deed in the current terms. Mr and Mrs Law wanted to take the Deed away and read it thoroughly. 39They all met again on 1 December 2010. Dr Taylor and Ms McMahon were also in attendance. Mr Sproule and Ms Dench say that the purpose of this meeting was to discuss and negotiate the Law's compensation claim. Mr and Mrs Law have a slightly different view which, once again, is remarkably consistent as between the two them. As Mrs Law was the individual who had a discussion with Dr Taylor about the Deed I will quote her narration of those events - Once again, at this meeting, there was no discussion concerning our costs or damages arising out of the tender process. During the meeting, Mr McMahon and Dr Taylor disclosed key findings of the Report to us. They also tried to convince us to sign the Deed. The information from the Report they disclosed included the following. ... At the end of the meeting, I asked Dr Taylor whether we had to sign the Deed in order to get our costs reimbursed. Dr Taylor said we did not. He said it was not a requirement. Dr Taylor suggested we get legal advice about the Deed and Mr McMahon said the Council would pay for that advice because the Council really wanted it signed. We agreed to seek advice. 40On 8 December 2010 Dr Taylor emailed a draft of his report to Mr Sproule. 41On 8 December 2010 Kells, on behalf of Mr and Mrs Law, wrote to Lindsay Taylor Lawyers seeking amendments to the Deed. This included the insertion of new clauses that required Council to provide them with: (a) the barrister's advice in relation to the purported recision of the contract; and, (b) a final version of Dr Taylor's report within 2 business days of its receipt by Council. 42Mr and Mrs Law met with representatives of the Council on 2 and 13 April 2011. The Council's evidence is that settlement negotiations took place at these meetings. Mr and Mrs Law say that the subject was the draft Deed which they refused to sign. 43On 16 June 2011 Mr and Mrs Law wrote to the Council - ...stating we no longer wished to negotiate the Deed of Release. We regarded the Deed of Release as a document entirely for their benefit and their (sic) request for reimbursement as an entirely separate matter. 44On 17 May 2011 Dr Taylor provided a draft of the Taylor report to Council. Council considered it in a closed session. Council resolved to withhold the report and associated correspondence from the media and public in accordance with section 11(2) of the Local Government Act 1993. 45In a closed meeting held on 30 July 2012 Council again considered the Taylor report. Council resolved - 1. That having read the draft "Report of Investigation into Tender for Suction- Street Sweeping Services - Contract 2009/09" by Dr Lindsay Taylor, the Council is satisfied that all matters investigated have been adequately dealt with by the General Manager. 2. That Council endorses the position of Council staff not to waive Legal Professional Privilege. 3.That the council authorises the General Manager to undertake further negotiation on the Deed of Release. 4. That if no Deed of Release is negotiated by the General Manager, Council then considers the investigations into the street sweeping tender to be closed. The Government Information (Public Access) Act 2009 46The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. 47"Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4. It includes "(e) a local authority." Local authority is in turn defined in Clause 1 of Schedule 4 to mean, "a council or county council within the meaning of the Local Government Act 1993." The Wollondilly Shire Council is such a council and is therefore an agency to which the GIPA Act applies. 48The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1. In the case of overriding secrecy laws it is conclusively presumed that there is an overriding public interest against disclosure (s 11 and s 14). 49Subsection 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. Included in this Schedule is information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege): see clause 5 in Schedule 1, which provides 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. 50Also included in this Schedule is information the disclosure of which is prohibited by a 'secrecy law' (see clause 1 of the Schedule) and 'excluded information' (see clause 6 of the Schedule). A 'secrecy law' is defined as a law set out in any of the Acts listed in clause 1. 51With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct 52There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides - There is an overriding public interest against disclosure of government information for the purposes of this 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. 53In considering whether there is an overriding public interest against disclosure s 16 provides that the following principles apply - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 54The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that - The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (s 14(3)). 55In exercising functions under the Act s 3(2) instructs that - It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 56Section 80 sets out a series of decisions that are reviewable decisions under the Act. Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review under s 82 within 20 days of the original decision (s 83). Secondly, they may seek review of the decision by the Information Commissioner under s 89. The Information Commissioner may then make a recommendation to the agency (s 92) including a recommendation that the agency reconsider the matter and make a new decision (s 93(1)), and a recommendation that there is not an overriding public interest against disclosure (s 94). Reconsideration following a recommendation is by way of internal review, where there has been no previous internal review, or by means of new decision where there had been a previous internal review (s 93).Thirdly, a person aggrieved may seek a review by the Tribunal (s 100). When this provision is read with s 38 of the Administrative Decisions Tribunal Act 1997, they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98). 57In any review of a reviewable decision s 105 places the burden of justifying the decision on the agency concerned. It provides - (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. 58The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 59Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides - (1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. ... Privilege 60Sections 117, 118 and 119 of the Evidence Act 1995 set out the circumstances in which a document is privileged from production in legal proceedings. If information is contained in a document that is privileged, then s 14(1) and cl 5 of Schedule 1 of the GIPA Act provide that the information is conclusively presumed to give rise to a public interest consideration against disclosure. Such information cannot be disclosed under the GIPA Act. 61In this case the Council claims that the Taylor report is privileged from production under both s 118 and 119 of the Evidence Act 1995. This is denied by Mr and Mrs Law. 62Alternately, Mr and Mrs Law argue that, if the Taylor report is privileged, that privilege has been waived by the disclosures about the findings and contents of the Taylor report that have been made to them. This is denied by the Council, which also argues that any disclosures made were made in the course of negotiations to settle a dispute between it and with Mr and Mrs Law, that were the subject of without prejudice privilege. 63As a result Council contends that Mr and Mrs Law cannot adduce or rely on evidence of without prejudice communications to argue that the privilege has been waived. To that end Council objected to any evidence being led with respect to those discussions. 64The resolution of these matters requires the applications and consideration of a number of the privileges provided for in Part 3.10 of the Evidence Act 1995, namely client legal privilege and negotiation (without prejudice) privilege. While s 73(2) of the Administrative Decisions Tribunal Act 1997 provides that the rules of evidence do not apply in this Tribunal, s 125(1)(c) specifically provides that - (1)Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995: (c) Part 3.10 (Privileges) of Chapter 3. 65Section 118 of the Evidence Act 1995 is concerned with legal advice privilege. It provides - 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. 66A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 per Finn J; AWB v Cole [2006] FCA 1234 per Young J at [44]. 67Section 119 deals with litigation privilege. It provides - 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. 68Section 117 contains definitions of confidential communication, confidential document, client and lawyer. Relevantly it provides: (1) In this Division: client includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) ... 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. Lawyer means: (a) an Australian lawyer, and (b) an Australian-registered foreign lawyer, and (c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and (d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c). 69There is no dispute that Dr Taylor is an Australian lawyer. 70Was there a solicitor - client relationship between Dr Taylor and Council? 71In their evidence both Mr and Mrs Law said that they believed that Dr Taylor was not engaged to prepare the investigation report for Council in his capacity as a solicitor. Rather they thought he was "conducting the investigation in his capacity as an academic with a PhD." 72That evidence is to be contrasted with the letter Ms Dench sent Mr and Mrs Law when it was decided to appoint Dr Taylor. In it she advised that she had "engaged a firm from Council's Legal Panel who have had no involvement in this matter." It is of note that both Mr and Mrs Law when describing this letter in their evidence omitted the word "Legal" from their descriptions of who was being appointed. 73In the light of Ms Dench's letter I am unable to accept that Mr and Mrs Law did not know that Council had engaged Dr Taylor to conduct the investigation in his capacity as a solicitor. I am reinforced in that conclusion by the fact that later, when Dr Taylor prepared draft Deeds and participated in negotiations with the Laws, there is no evidence that Mr and Mrs Law objected to his involvement, or raised issues concerning a change in his apparent status. 74I am satisfied that the relationship of lawyer and client existed between Dr Taylor and Council. Was the Taylor report prepared for the dominant purpose of anticipated litigation or the provision of legal advice to Council? 75Council submits that the Taylor report was prepared from the dominant purpose of anticipated litigation with Mr and Mrs Law. It does not rely on anticipated litigation with anyone else. 76Alternatively, Council submits that the dominant purpose of the report was the provision of legal advice relating to the street sweeping tender, issues arising from it and from disputes relating to it. 77Mr and Mrs Law dispute these submissions.. They point to the fact that when Dr Taylor was first engaged to investigate and report on 18 May 2010, Council had already received and accepted senior counsel's advice regarding the tender contract. The General Manager had told Mr Law on 30 April 2010 that the advice was that Mr and Mrs Law had a contract. Mr Law said he had then told the General Manager that he had no intention of suing. There was no evidence from Council disputing this. The legal advice had been discussed at the Council workshop on 10 May 2010, with the General Manager being instructed to correct the situation and to pay Law's legal costs. Mr McMahon had communicated that fact to Mr Law. Further, Ms Dench, when discussing with Mr Law the decision to investigate the tender process on 13 May 2010 told his there was no dispute about the contract. 78Mr and Mrs Law submitted that in those circumstances the threat of litigation from them no longer existed. They had their contract and had been assured that the mechanics to restore their position and pay their costs would be put in place. (In response Council argued the threat to sue had not been withdrawn and there remained consequential issues to be resolved including the form of a Deed). 79Further, Mr and Mrs Law argued that the purpose of report was not the provision of legal advice. This was so because the threat of litigation with them had been withdrawn at the time Dr Taylor was appointed. They submitted that his purpose was to investigate and report on what had happened in the in the course of the tender, how complaints and issues arising from the tender had been handled, and to make recommendations about the future management of such issues. This they submitted was essentially and administrative or process review, and as such the dominant purpose underlying the Taylor report was not the provision of legal advice or in connection or in connection with apprehended litigation: Priest v State of New South Wales [2006] NSWSC 128, per Johnson J at [53]. The fact that a lawyer had provided the report was not determinative of the dominant purpose for the creation of the report. The fact that Mr Sproule wrongly believed that appointing a lawyer would automatically ensure confidentiality, they submitted, was the key reason why a lawyer was appointed. 80Mr and Mrs Law pointed to the fact that the letter of instructions from Council to Lindsay Taylor Lawyers appointing Dr Taylor to investigate and report had not been tendered in evidence by Council. They submitted that I should draw an inference that the letter would not have assisted Council's case: Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367. 81In considering these arguments I have had the advantage of reading and considering a confidential copy of the draft Taylor report. As is often the case in these matters, the document in issue was of considerable assistance in determining its dominant purpose. The report contains a detailed overview of evidence with respect to the tender, the work of the tender evaluation panel, the consideration of its report, and post tender events. That evidence is then analysed and conclusions of fact are drawn. The law applicable to a series of those findings is discussed and analysed. Conclusions are drawn and advice is given concerning whether the evidence demonstrates compliance with those requirements. Those issues are much wider and of a broader scope than those relating to Mr and Mrs Law and their threatened litigation alone. The report does include some analysis of whether there has been adherence to Council policies, but this is a relatively minor focus. 82The content of the report is consistent with what Ms Dench said she was seeking when she decided to appoint Dr Taylor. Her concern, as I understood it, was that there were a number of potential issues arising from the tender process and subsequent events with possible legal ramification for Council that needed to be investigated and understood, with appropriate action being taken, if necessary. 83Legal advice is a "fairly wide" concept: Kirby v Centro Properties No 2 [2012] FCA 70, [80] per Bromberg J. It has been held to include a report as to whether a debt was properly classified (Kirby) and a report of an investigation into alleged misconduct in Council planning processes (Woolley v Lismore City Council [2013] NSWADT 10, per Higgins DP at [60]). This is so as legal advice extends beyond a simple narration of the law to encompass "what should prudently and sensibly be done in the relevant legal context': Balabel v Air India [1988] Ch 317, at 330 per Taylor LJ. 84In DSE (Holdings)Pty Ltd v Intertan Inc (2003) FCR 151 Allsop J expressed his understanding of those words of Taylor LJ in Balabel, at [45] - "I do not read the reasons of Taylor LJ as extending the privilege beyond legal advice. The reasoning of Taylor LJ was clearly directed to the privilege being so limited. What legal advice is, however, goes beyond formal advice as to the law. This recognition does not see the privilege extend to pure commercial advice. In any given circumstance, however, it may be impossible to disentangle the lawyer's views of the legal framework from other reasons that all go to make up the "advice as to what should prudently and sensibly be done in the relevant legal framework"· (Taylor LJ in Balabel at 330). That is how I read this last cited paragraph of Colman J: not extending the privilege beyond legal advice to commercial advice, but as recognising the form and nature of advice in a practical day to day context. 85I am satisfied that the dominant purpose underlying the Taylor report was the provision of legal advice to Council concerning the tender process and events subsequent to it. 86While these events include the contractual dispute with Mr and Mrs Law, the purview of the report is much wider than advice with respect to their claim and extends to matters unrelated to it. I am not satisfied that that the dominant purpose for the report was in connection with apprehended litigation with Mr and Mrs Law. 87Mr and Mrs Law pointed to Mr Sproule's evidence concerning why he thought a lawyer should be appointed, and his mistaken view that appointing a lawyer would ensure confidentiality. Two points need to be made about this. First, Mr Sproule in evidence made it clear that in addition to his concern about confidentiality he shared Ms Dench's wider concerns. Secondly, while Mr Sproule was consulted about whom to appoint, and drafted the letter of appointment to Dr Taylor, Ms Dench was the directing mind behind the appointment and signed the letter. She did not share Mr Sproule's misconception about automatic confidentiality of all client-lawyer communications, but clearly intended the Taylor report to be confidential. 88As a result I am satisfied that the Taylor report is subject to legal advice privilege under s 118 of the Evidence Act 1995. 89While discussing the letter of appointment it is convenient to briefly address Mr and Mrs Law's submission that I should draw an Jones v Dunkel inference that Council did not tender Dr Taylor's letter of appointment because it would not assist its case. I agree with Council that such an inference should not be drawn as that letter is a privileged communication between solicitor and client for the purpose of seeking legal advice. Is Mr and Mrs Law's evidence of conversations concerning the content of the Taylor report admissible? 90Mr and Mrs Law submitted that in conversations with them the gist of the Taylor report had been disclosed to them by Dr Taylor. This were said to have occurred during the meeting involving Dr Taylor, Mr McMahon, Ms Dench, Mr Sproule and Mr and Mrs Law on 1 December 2010. Dr Taylor is also said to have told them his then thinking at their interview with him on 24 June 2010, but that was well before he had drafted the report. 91They argued that by Dr Taylor disclosing the gist of the report to them in the presence of Senior Council Officers, Council had waived any legal advice privilege attaching to the report. In answer to this Council advanced a number of propositions, the first of which was the evidence concerning communications between Mr and Mrs Law and Council, and their respective legal advisers was not admissible because those communications were without privilege communications. Council submitted that all communication between them from the opening without prejudice letter from Marsdens of 5 February 2010 until Mr and Mrs Law ceased negotiations in June 2011, were privileged. 92Without prejudice privilege is the subject of s 131 of the Evidence Act 1995. It provides - 131 Exclusion of evidence of settlement negotiations (1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute. ... 93I have considerable difficulty with accepting the breadth of Council's submission that all communications between Mr and Mrs Law and Council, and their respective legal advisers, from 2 February 2010 until Mr and Mrs Law ceased negotiations in June 2011 are subject to without prejudice privilege. In my view the communications between Kells and Marden until 31 March 2010 were not made in connection with an attempt to negotiate a settlement of the dispute. Rather those letters contain assertions of the correctness of their respective positions in apparent attempt to force capitulation. They do not contain offers to settle, and are not privileged: Tickell v Trifelska Pty Ltd (199) 25 NSWLR 352 at 355, and Jones v Millward [2005] 1 Qd Rt 498 at 500. 94It would be possible, with considerable time and effort, to analyse the course of negotiations between Mr and Mrs Law and the Council in order to determine which communications were made in an effort to negotiate their dispute. However, the real issue is whether the discussion that took place on 1 Decembers 2010 was one to which s 113 of the Evidence Act 1995 applied. This is so because it is in that conversation that Mr and Mrs Law allege the gist of the Taylor report was revealed to them by Dr Taylor in the presence of Senior Council officers. 95I am satisfied on the evidence that at that time there were a number of unresolved issues flowing from the contractual dispute between Mr and Mrs Law and Council. These were payment to Mr and Mrs Law of their requested costs and compensation, and the terms of a proposed Deed of Settlement. While they saw no requirement for the Deed and say that Mr McMahon had told them he had authority to pay their costs etc, it is apparent that Council saw a the final resolution of all issues as requiring execution of Deed. That Council contemplated this need should have been obvious to Mr and Mrs Law for a number of reasons. First, Council had on 19 July 2010 resolved to give the General Manager authority to negotiate a Deed of Release, if necessary. with them. They had been in attendance at that meeting. Secondly, commercial prudence and common sense both dictated that, given senior counsel's advice, Council should obtain a release from further liability in any settlement of Mr and Mrs Law's claim. 96In my opinion these consideration demonstrate that Mr and Mrs Law and Council were in dispute about the terms of the deed and payment of costs and compensation. There is no dispute that there were a series of meetings between Mr and Mrs Law and Council representatives in the latter half of 2010 where Mr and Mrs Law expected payment for compensation and costs, and the terms of a proposed Deed, were discussed. This included the meeting on 1 December 2010 where the Deed was an agreed subject of discussion. At that meeting Council, on Mr and Mrs Law's own evidence, offered to pay the Law's costs of getting legal advice regarding the Deed. Council wanted the Deed signed. In the course of discussions Dr Taylor told them certain things about his report. Ms Dench and Mr Sproule, who were also present at that meeting, say settlement negotiations took place. 97In my view the evidence regarding that meeting compels the conclusion that the discussions between Mr and Mrs Law, Dr Taylor and Council officers on 1 December 2010 were communications made in an attempt to negotiate the outstanding disputes between Mr and Mrs Law and Council. As such those communications are privileged under s 131 of the Evidence Act 1995, and evidence of them is not admissible. Has Council waived client legal privilege over the Taylor report? 98Section 122 of the Evidence Act 1995 relevantly provides: '(1) ... (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) ... 99This provision is said to represent a legislative attempt to more closely align s 122 with the common law of waiver of legal professional privilege, as expounded in Mann v Carnell (1999) HCA 66: see Explanatory Note to Sch. 1 item [57] of the Evidence Amendment Bill 2007. In that case Gleeson CJ, Gaudron, Gummow and Callinan JJ said at [28 and 29 - footnotes omitted]: 'Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and the maintenance of the confidentiality which affects a waiver of the privilege. Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law'. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the banister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. 100In Mr and Mrs Law's case, as I have held above, there is no admissible evidence of any circumstance that might amount to a waiver. 101I would add that if I were wrong about the issues of admissibility, that evidence discloses that at that time Dr Taylor was the lawyer for the Council, and there is no evidence that he was expressly authorised to make those disclosures. 102Insofar as Mr and Mrs Law rely on the presence of senior officers of the Council at that meeting as implying that Dr Taylor had authority to make the disclosures a number of points need to be made. First, there is no evidence of any express authorisation. Secondly, the officers of the Council who were in attendance were each employees of Council, and there is no evidence that they had authority to waive privilege on Council's behalf. Thirdly, there is no evidence of Council agreeing to waive its privilege. Indeed what evidence there is in that regard, albeit later in time, is that Council is asserting the privilege. 103As a consequence of the above I am satisfied that Council has not waived privilege in the Taylor report. Conclusion 104As a consequence of all the above I am satisfied that the Taylor report is subject to client legal privilege under s 118 of the Evidence Act 1995. 105It follows that there is a conclusive presumption that release of the Taylor report under the GIPA Act is subject to an overriding public interest against disclosure. 106This means that the correct and preferable decision is to refuse Mr and Mrs Law access under the GIPA Act to the information contained in the report. This was the decision originally made by Council, which decision is affirmed on review. ********** 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: 16 September 2013