Spice v Mosman Council [2016] NSWCATAD 215

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Spice v Mosman Council [2016] NSWCATAD 215 Hearing dates: 15 September 2016 Date of orders: 28 September 2016 Decision date: 28 September 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: The decision under review is varied as follows:

(a) The applicant is to be given access to folios 26, 28, 29, 30, 34 and 39. Catchwords: ADMINISTRATIVE LAW –– access to government information – deliberative process of government or agency – overriding public interest against disclosure Legislation Cited: Government Information (Public Access) Act 2009 (NSW) Administrative Decisions Review Act 1997 (NSW) Cases Cited: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588 McKinnon v Secretary Department of Treasury [2006] HCA 45 Texts Cited: Macquarie Dictionary Category: Principal judgment Parties: Wayne Spice (Applicant) Mosman Council (Respondent) Representation: Solicitors: W Spice (Applicant in person) Pikes and Verekers Lawyers (Respondent) File Number(s): 1610205

REASONS FOR DECISION 1. This is an application for review of the internal review decision by Mosman Council dated 7 January 2016 of the applicant's access application under the Government Information (Public Access) Act 2009 ("GIPA Act") of 11 November 2015 for the following information: "Correspondence relating to Wayne Spice, [address], 10/50 Vegetation Clearing and Mosman Council Tree Pruning and Lopping." 1. On internal review the Council released some information additional to that already released under the original determination and determined not to release other information. It did so on the basis that there was an overriding public interest consideration against the release of the information. There were 2 public interests relied upon. 2. Firstly, that under Table 1 of s 14, cl 1(e) of the GIPA Act, that disclosure could reasonably be expected to reveal Council's deliberative processes in such a way as to prejudice a deliberative process. The processes concerned included the investigation, assessment and prosecution of apparent breaches of Council policy, the Mosman Local Environmental Plan 2012, the Environmental Planning and Assessment Act 1979 and / or the Local Government Act 1993. 3. Secondly, that disclosure would release 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. There is a conclusive presumption of an overriding public interest against disclosure of such information under Sch 1 cl 5 (1). The internal review decision stated that Council had considered waiving its right to privilege but declined to do so. That decision is not reviewable by the Tribunal (Sch.1 cl 5 (3)).