Bayne v Department of Premier and Cabinet [2016] NSWCATAD 69

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bayne v Department of Premier and Cabinet [2016] NSWCATAD 69 Hearing dates: 16 February 2016 Date of orders: 13 April 2016 Decision date: 13 April 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: (1) The decision of the respondent is affirmed in respect of the material withheld pursuant to Schedule 1 of the GIPA Act . Catchwords: GIPA Act - Legal professional Privilege- Information withheld – Conclusive presumption against disclosure – Confidential manner of hearing and reasons – Whether context of information should be disclosed further bearing in mind release of majority of information Legislation Cited: Evidence Act 1995 Government Information (Public Access) Act 2009 Cases Cited: Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 Bayne v Department of Environment and Heritage [2016] NSWCATAD 52 Category: Principal judgment Parties: Rosemary Bayne (Applicant) Department of Premier and Cabinet (Respondent) Representation: Solicitors: Mr A Field (as agent for Applicant) NSW Crown Solicitors Office (Respondent) File Number(s): 1510448, 1510534, 1510536

Reasons for decision 1. These reasons relate to three separate administrative review applications filed by the applicant seeking a review of a decision under the Government Information (Public Access) Act 2009 (the GIPA Act), in respect of three applications under the GIPA Act.

Background 1. When the three applications for review were lodged with the Tribunal in 2015, one matter contained a decision by the respondent (1510534), and two matters 1510535 and 1510536 were lodged under the provisions whereby a review can be sought where a decision had not been made within a specified time. (A deemed decision for review). 2. Between lodgement and the hearing date, there had been significant consideration of the matters in particular by the respondent, whereby further decisions and supplementary decisions had established remaining residual disputes between the parties as to what documents were pressed by the applicant and what documents were withheld by the respondent. Of the remaining issues, these matters were all heard on 16 February 2016 whereby a significant portion of the hearing involved a confidential hearing under the provisions of section 107 of the GIPA Act. 3. Prior to any final determination of the matters, as various concessions had been made, and interlocutory rulings by the Tribunal in the confidential session, at the conclusion of the hearing the following was agreed between the parties with the Tribunal: * Matter 1510534 remitted to the respondent for a redetermination providing the applicant with the material 'conceded' and agreed by the respondent in the confidential session. Such redetermination to be finalised by 23 February 2016. * Applicant to notify Tribunal and respondent as to whether they press the sufficiency of search ground (section 53 GIPA Act). Notification to be provided by 1 March 2016. If that matter is pressed then the matter is part heard, if not pressed then the matter is reserved. 1. There were other GIPA Act matters between the parties running separately before the Tribunal. Various attempts were made to consolidate these in the period 16 February 2016 to 5 April 2016. At a Case Conference / Planning Meeting on 5 April 2016 the parties agreed after much informal analysis and consideration, that all residual matters between the parties (bar one) were resolved. This agreement related to these three sets of proceedings and two other proceedings (1510535 and 1510818). 2. The remaining issues for consideration relates solely to the Tribunal consideration of the characterisation of the material dealt with in the Confidential Session on 16 February 2016. As indicated at paragraph 3 (first dot point), some of the material from that session has now been provided to the applicant. It is the residue of that material that is now to be decided in these written reasons. 3. By way of background, the applicant is one of a number of former business owners who traded from the Jenolan Caves location prior to their leases being cancelled and an administrator being appointed. There have been a number of GIPA Act applications before the Tribunal for access to government information from two specific agencies including the respondent in this matter. 4. The applicant represents a group of these business owners formerly associated with Jenolan Caves. The above background is in my view necessary in order to understand the context of the applications for information. 5. I will confine these reasons to the remaining outstanding material only. In my view it is not necessary to further explore any of the related issues, their reasons for resolution or adjudication, and the details of separate applications under the GIPA Act. 6. The respondent relied on a conclusive presumption against disclosure both in their response to the application and at hearing. The specific ground being that the material forms part of material for which a claim of legal professional privilege could be made, and as such it is captured by Clause 5 of Schedule 1 of the GIPA Act. 7. Therefore the task of the Tribunal is to determine whether the material withheld by the respondent can be assessed and properly characterised as material to which would fall under the provisions of Clause 5 of Schedule 1 of the GIPA Act.