Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Transport for NSW & Ors v Robinson [2018] NSWCATAP 123 Hearing dates: 12 April 2018 Date of orders: 24 May 2018 Decision date: 24 May 2018 Jurisdiction: Appeal Panel Before: Dr J Renwick SC, Senior Member S Higgins, Senior Member Decision: 1. Direct the parties to confer within 7 days and either file consent orders or within a further seven days file and serve competing orders with no more than three pages of supporting submissions. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – APPEAL PANEL – GOVERNMENT INFORMATION – Cabinet information – Relevant test – Whether reasonable grounds for claim – Legal professional privilege – Whether privileged documents have lost privilege by waiver Legislation Cited: Coastal Management Act 2017 (NSW) Evidence Act 1995 (NSW) Government Information (Public Access) Act 2009 (NSW) Interpretation Act 1987 (NSW) Transport Administration Act 1988 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Commonwealth v Northern Land Council (1993) 176 CLR 604 Mann v Carnell (1999) 201 CLR 1 Rail Corporation of New South Wales v Brown [2012] NSWCA 296 Category: Principal judgment Parties: Transport for NSW (First Appellant) Roads and Maritime Services (Second Appellant) Premier of NSW (Third Respondent) Peter Robinson (Respondent) Representation: Counsel: N Sharp SC and K Pham (Appellants/Respondents in Cross-Appeal) M Robinson SC (Respondent/Appellants in Cross Appeal) Solicitors: NSW Crown Solicitor for the Appellant/Respondent in the Cross-Appeal P Robinson in person File Number(s): AP 17/54179 Publication restriction: Confidentiality orders were made under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) in regard to material the appellants filed and marked confidential. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2017] NSWCATAD 353 Date of Decision: 30 November 2017 Before: Dr J Lucy, Senior Member File Number(s): 2016/378398, and 2016/378399 reasons for decision Introduction 1. This is an appeal and a cross-appeal from the decision of the Administrative and Equal Opportunity Division in relation to government information held by Transport for NSW (file no 2016/00378398) and Roads and Maritime Services (RMS) (file no 2016/00378399) concerning certain documents and information relating to the coastal management government policy changes in New South Wales which led to the enactment of the Coastal Management Act 2017 (NSW). 2. For the reasons which follow we have found that the Tribunal below erred in the proper construction of one provision of the Government Information (Public Access) Act 2009 ("the Act") concerning cabinet information and also erred in law in finding that legal professional privilege had been waived. There are also some other minor matters. Background 1. In 2015 certain reforms to the coastal management and coastal planning policy in New South Wales were considered by various NSW Government entities including the Department of Planning and Environment, the Office of Environment and Heritage, the Department of Premier and Cabinet, RMS and Transport for NSW. 2. We note that RMS is a corporation constituted by s 46(1) of the Transport Administration Act 1988, and which by s 46(2) of that Act is a NSW Government agency. Similarly, Transport for NSW by operation of s 3C of the Transport Administration Act is a corporation and is also a NSW Government agency. 3. Section 13A of the Interpretation Act 1987 provides: 13A NSW Government agencies and statutory bodies representing the Crown (1) If an Act provides that a body is: (a) a NSW Government agency, or (b) a statutory body representing the Crown, the body has the status, privileges and immunities of the Crown. 1. Thus, each of RMS and Transport for NSW have 'the status, privileges and immunities of the Crown'. 2. In the manner and in the terms described in the decision below, Mr Robinson applied under the Act to Transport for NSW and RMS for certain information relating to these coastal planning and management reforms. Regrettably, it was necessary for this Tribunal to remit the matters to each of those institutions to conduct further searches and make supplementary decisions. It is for this reason that there is reference below to both 'original' and 'supplementary' decisions by RMS and Transport for NSW. Because the documents in question include cabinet information the Premier of New South Wales is a party by operation of s 106 of the Act 3. In a careful and detailed decision below, most of which is not challenged on this appeal, the Tribunal considered, most relevantly, a claim under cl 2 of Schedule 1 to the Act and a claim under cl 5(1) of Schedule 1 to the Act. 4. We now set out relevant provisions of the Act noting that, first, there is a general presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the Act) and that, equally, an applicant for access to government information has a legally enforceable right to access the information, again, unless there is an overriding public interest against the information's disclosure: s 9 of the Act. 5. Section 14 of the Act provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. 1. Clauses 2 and 5 of Schedule 1 to the Act provide: 2 Cabinet information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents: … (b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet), (c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given), (d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions, (e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet, (f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)–(e). (2) Information contained in a document is not Cabinet information if: (a) public disclosure of the document has been approved by the Premier or Cabinet, or (b) 10 years have passed since the end of the calendar year in which the document came into existence. (3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1). (4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would: (a) reveal or tend to reveal information concerning any Cabinet decision or determination, or (b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet. (5) In this clause, Cabinet includes a committee of Cabinet and a subcommittee of a committee of Cabinet." … 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 1. Section 106 of the Act provides: 106 Decisions about Cabinet and Executive Council information (1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter. (2) If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it. (3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter. (4) NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter. (5) The Premier is a party to any proceedings on an application under this section. The hearing 1. At the hearing of the appeal and cross-appeal certain orders were made by consent including in relation to non-publication of confidential material relied on by the appellants in this appeal: see the Act, s 107 and the Civil and Administrative Tribunal Act 2013 (NSW), s 64. We now turn to the grounds of appeal. Grounds for appeal Ground 1 1. This ground provides that The Tribunal erred in law in its construction of cl.2(1)(e) of Sch.1 to the Act by superimposing a condition – not warranted by the terms of the provision – that Cabinet must actually have deliberated upon the matter, and accordingly erred in its decision ordering the release of the following documents: File No 2016/00378399 1. Information in RMS Supplementary Documents 6, 14, 16, 23, 24, 25, 29 and 39; 2. All redacted information in RMS Supplementary Documents 1, 7, 12, 14, 32; 3. All information in the document entitled "Email dated 6 November 2015 (Coastal Reforms – Exposure Draft Coastal Management Bill Cabinet Submission – RMS Views)"; 4. Information in the document identified as "Email – RE: Sensitive" NSW CABINET: Invitation to review an ERC submission"; File No 2016/00378398 1. Redacted information in Transport for NSW Supplementary Documents 1, 2 and 3; 2. And all information in Transport for NSW Supplementary Document 6. Particulars 1. In relation to RMS Documents, see Decision at [110], [124], [127], [129(2)], [129(7)] and [131]. See also at [119]. 2. In relation to Transport for NSW Documents, see Decision at [142] and [144]. 1. In the decision below, the Tribunal said: 110. Mr Kelly's evidence is that Document 14, an email dated 22 February 2016, reveals the position that the Minister for Planning took in relation to a proposal contained in the draft Cabinet submission and Discussion Paper. I have examined Document 14 and accept that this is so. However, the respondents need to establish reasonable grounds for the claim that the document was prepared before Cabinet's deliberation or decision on a matter. There is some evidence, in Document 14 itself, of a revised schedule for the Cabinet submission and Discussion Paper to go to Cabinet, although the respondents did not identify any evidence that they in fact did go to Cabinet. There is further evidence, in one of the confidential documents (Document 1), that this schedule was later delayed again. There is no evidence that Cabinet ever deliberated or made a decision on any of the matters referred to in Document 14. On balance, I am not satisfied that there are reasonable grounds for the claim that Document 14 reveals or tends to reveal the position of a particular Minister on a matter in Cabinet. [emphasis added] 1. It is clear from this passage that the Tribunal required evidence that Cabinet had actually deliberated or made a decision for the conclusive public interest consideration against disclosure of the information to apply. This is not a concept that applies under the GIPA Act. For the reasons which follow, we agree that this decision puts an impermissible gloss on cl 2(1)(e) of Schedule 1 to the Act and involves an error of law. 2. The correct approach to statutory interpretation was summarised by Bathurst CJ in Rail Corporation of New South Wales v Brown [2012] NSWCA 296 at [39] as follows: As has recently been pointed out by the High Court on a number of occasions, the process of construction begins with the construction of the ordinary and grammatical meaning of the words in question, having regard to their context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3 at [26]; Roadshow Films Pty Limited v iiNet [2012] HCA 16 at [22]; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [41], [45]-[48]. 1. The text does not provide any support for the approach taken by the Tribunal below. It will be recalled that cl 2(1)(e) provides that: It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents…(e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet… 1. A plain reading of the provision makes clear that it involves the following steps. 1. there must be a document prepared either before or after Cabinet's deliberation or decision on a matter; 2. it must reveal or tend to reveal a defined position; and 3. the defined position is one that a particular Minister has taken, is taking, or will take, is considering taking, or has been recommended to take on the matter in Cabinet. 1. If the clause is to be limited to information that was actually deliberated upon or went to Cabinet, it will leave no work to do for, or make redundant, the words "will take", "is considering taking", and "has been recommended to take". Consider the example of information prepared for Cabinet under one Government which, because of a change of Government, is never actually considered by Cabinet but was nevertheless actually prepared for the purpose of a Cabinet submission and otherwise fell within the words of the section. Such information would not be protected, whereas it clearly falls within the words of the section. 2. Next, the exemption might depend upon the point in time when the application was determined, which is an approach that gains no support from the section. Thus, if an application under the Act was determined at a time when the information was still intended to go before Cabinet it would be protected. But if on the example postulated the Government had changed and the new Government was not considering the particular topic it would not. That cannot be correct. Rather, the clause is plainly intended to cover material prepared in advance of a potential Cabinet meeting. 3. Further, the construction given to the clause below tends to undermine the purpose of the clause, namely protection of cabinet deliberative processes. Thus, a unanimous High Court in Commonwealth v Northern Land Council (1993) 176 CLR 604 at 615-616 said that: … [it] has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made. Although Cabinet deliberations are sometimes disclosed in political memoirs and in unofficial reports on Cabinet meetings, the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential. Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government. Moreover, the disclosure of the deliberations of the body responsible for the creation of state policy at the highest level, whether under the Westminster system or otherwise, is liable to subject the members of that body to criticism of a premature, ill-informed or misdirected nature and to divert the process from its proper course. The mere threat of disclosure is likely to be sufficient to impede those deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny. (citations omitted) … It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited. The latter may involve the exploration of more than one controversial path even though only one may, despite differing views, prove to be sufficiently acceptable in the end to lead to a decision which all members must then accept and support. 1. It is clear that the exemption in the Act acknowledges the central position of Cabinet in government and gives effect to the need to ensure that decision-making and policy development by Cabinet is uninhibited. For that reason, a particular Minister's view whether actually expressed, or planned to be expressed, or recommended on his or her behalf to be expressed, are all protected. 2. Accordingly, the decision below incorrectly construed cl 2(1)(e) by adding a requirement that Cabinet had actually deliberated or made a decision on the matters referred to in the document. It follows that for the documents where that construction was determinative for a decision to release, namely RMS Supplementary Documents 12, 14, 32 and the Email dated 6 November, access should be refused. 3. It is not necessary to consider Ground 2, which was in the alternative to Ground 1. Ground 3 1. This amended ground of appeal, which amendment was not objected to by the respondent, provides as follows: "The Tribunal erred in determining to release RMS Supplementary Documents 6, 7, 16, 25, 29 and 32 since, while the Tribunal correctly identified that the applicable standard of review was that specified in s.106(1) of the Act at [67]-[71], it failed at [129(2)], [129(3)], [129(5)], [129(6)] and [129(7)] to in substance apply that standard in determining that there were not reasonable grounds for the claims that the information in those documents fell within cl.2(1)(e) of Sch.1 to the Act". 2. The paragraphs referred to are as follows. Cabinet Information Claims 67. The first matter the Tribunal needs to determine is whether there were reasonable grounds for the respondents' claims that some of the information sought is Cabinet information (GIPA Act, s 106(1)). This is to be determined as at the time of the GIPA determination. 68. The Premier was represented in the proceedings, as is the Premier's right as a statutory party under s 106(5) of the GIPA Act. The Premier had the same legal representation as Transport for NSW and the RMS. When I refer to "the respondents" in relation to the Cabinet information claim, I mean to refer to Transport for NSW and/or RMS and the Premier, as relevant in the particular context. 69. The words "reasonable grounds" are to be given their ordinary meaning and paraphrases and adaptations of the phrase (such as "not irrational, absurd or ridiculous") should be avoided (McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 ("McKinnon"), Hayne J at 445 [60], Callinan and Heydon JJ at 468 [131]). As Gleeson CJ and Kirby J observed in McKinnon, a determination of whether there were reasonable grounds for a claim "involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue" (McKinnon, at 430 [11]). Their Honours held (at 431 [13]) that, the reference in the provision in the Freedom of Information Act 1982 (Cth) to "reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest": "raises the question whether, having regard to all the relevant considerations available to the [Administrative Appeals] Tribunal, there are matters that are sufficient to induce in a reasonable person a state of satisfaction that disclosure of a document would be contrary to the public interest. The expression "reasonable grounds for the claim" means reasonable grounds for contending that the Minister should be so satisfied. That is the nature of the claim." 70. The words "reasonable grounds", in a different statutory context, were recently considered by the High Court in Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441. A Northern Territory statute provided that a member of the police force was entitled to arrest a person if the member had "reasonable grounds" for believing the person was intoxicated in a public place and likely to commit an offence. The appellant, who had been arrested under the provision, argued that the arresting officer did not have reasonable grounds for his belief. Kiefel and Bell JJ held (at 445 [4]) that the provision required that the constable hold the relevant beliefs and that "the facts and circumstances" known to the constable: "[C]onstituted objectively reasonable grounds for those beliefs. Proof of the latter requires that those facts and circumstances be sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief." 71. The statutory phrase differs here, because it is not concerned with reasonable grounds for a belief, but rather with reasonable grounds for a claim (as in McKinnon). Nevertheless, reasonable grounds for a claim may entail facts and circumstances sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the claim. … 129. I do not accept that there are reasonable grounds for the claim that cl 2(1)(e) applies to: … (2) Document 6. Mr Kelly's evidence, which I accept, is that this is a log of comments received during consultation with respect to the draft Cabinet submission. I accept that these comments reveal the substance of matters dealt with in the draft submission. However, I do not accept that there are reasonable grounds for the claim that this information tends to reveal the position a Minister is considering taking, or has been recommended to take, with respect to a matter in Cabinet. There is no evidence that any matter in the document was subject to a Cabinet deliberation or decision. Nor have the respondents identified the "matter" about which a Minister was recommended to take a "position" and the nature of that position. I do not consider that they have discharged their onus of demonstrating reasonable grounds for the claim. (3) The redacted material in Document 7. Mr Kelly's evidence is that the redacted material contains detailed discussion of various proposals which form the basis of the draft Discussion Paper and Cabinet submission and directly reflects the content of the draft Cabinet submission that has been lodged in e-Cabinet. Mr Kelly did not explain how he knew that this was "lodged in e-Cabinet" or what it means for a document to be "lodged in e-Cabinet". There is no evidence that the draft Cabinet submission was in fact considered by Cabinet. The respondents have not made a submission as to what "position" they claim is revealed by this material or what "matter" they say was subject to Cabinet discussion. Having reviewed the evidence and the document, I am not satisfied that there are reasonable grounds for the respondents' claim. (5) Document 16. Mr Kelly's evidence is that this document was created to explore various operational dimensions of one of the Interagency Working Group proposals contained in the Cabinet submission and that it reveals the nature of one of the options considered and addressed in the Cabinet submission. I am not satisfied that there are reasonable grounds for the claim that Document 16 tends to reveal the position which a Minister is considering taking, or has been recommended to take, in Cabinet. (6) Redacted material in Documents 25 and 29. Mr Fifield's evidence is that the redacted material, being material redacted from an email sent by Mr Fifield, contains a discussion of the draft Discussion Paper which includes direct quotes and extracts from that document. He expresses the view that this material reveals the nature of the proposals put forward in the draft Discussion Paper which are also outlined in the submission prepared for Cabinet. Having reviewed the material, it is concerned with a query about a very particular matter. I do not accept that there are reasonable grounds for the claim that it reveals or tends to reveal a position a Minister is considering taking, or has been recommended to take, on a matter in Cabinet. The respondent bears the onus. The respondent has not clearly explained whether the submission prepared for Cabinet (referred to by Mr Fifield) is that contained in the confidential materials or demonstrated how the "proposals" Mr Fifield refers to are "outlined" in the Cabinet submission. (7) Redacted material in Document 32. Mr Fifield comments about the redacted material in Document 32 that it consists of direct quotes from the Discussion Paper and his comments on the implications of certain proposals on RMS. He says that these comments were later incorporated into the Discussion Paper and draft submission. He says, in addition, that the material redacted from Ms Williams' email reveals the position of the Minister for Planning with respect to one of the options contained in the Discussion Paper and submission. Whilst I accept this evidence, it does not establish that the information reveals or tends to reveal the position of a particular Minister. The comments of Mr Fifield do not, in my view, tend to reveal the position taken by a Minister. Whilst a small amount of the material redacted from Ms Williams' email reveals a position of the Minister for Planning, there is no evidence that Cabinet deliberated or made a decision about the matter. Supplementary Documents 6, 25 and 29 1. The Tribunal concluded at 129(2) that 'There is no evidence that any matter in the document was subject to a Cabinet deliberation or decision.' At 129(5) it concluded that 'The respondent has not clearly explained whether the submission prepared for Cabinet (referred to by Mr Fifield) is that contained in the confidential materials or demonstrated how the "proposals" Mr Fifield refers to are "outlined" in the Cabinet submission.' 2. We have decided to grant leave to appeal from that finding in accordance with the principles in Collins v Urban [2014] NSWCATAP 17 at [84] namely that, for the reasons which follow there is 1. 'an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand'; and/or 2. 'a factual error that was unreasonably arrived at and clearly mistaken'. 1. As the Appellant correctly submits, Supplementary Documents 1,2,3 'all contain the same redacted passage in a 2 October 2015 email, which refers to the content of a draft Cabinet submission… Supplementary document 6 …attaches a briefing note for the Minister…which suggest certain comments be made on the draft submission. Thus, in fact, the exemption is clearly made out: hence the grant of leave to appeal. We would refuse access to the documents. 2. Further, the email from which those particular comments are taken appears at RMS Supplementary Documents 25 (Confidential Tender Bundle, pp. 295-297) and 29 (Confidential Tender Bundle, p. 315). Mr Fifield gave evidence below about this email chain explaining that it passed between members of the IWG which at that time was preparing a Cabinet submission, and a discussion paper for Cabinet. The emails in fact disclose a position that the Minister for Planning was recommended to take on the matter before Cabinet. Although the Tribunal correctly recognised it was to apply a "reasonable grounds" test and its findings use that language, the findings cannot be reconciled with the text of the documents where there is in fact evidence which on any view met the reasonable grounds test but also show that in fact the draft submission was deliberated upon in Cabinet. Again, in fact, the exemption is clearly made out: hence the grant of leave to appeal. We would refuse access to the documents. RMS Supplementary Document 7 1. RMS Supplementary Document 7 is dealt with at [129(3)] of the decision below as follows: 129. I do not accept that there are reasonable grounds for the claim that cl 2(1)(e) applies to: (3) The redacted material in Document 7. Mr Kelly's evidence is that the redacted material contains detailed discussion of various proposals which form the basis of the draft Discussion Paper and Cabinet submission and directly reflects the content of the draft Cabinet submission that has been lodged in e-Cabinet. Mr Kelly did not explain how he knew that this was "lodged in e-Cabinet" or what it means for a document to be "lodged in e-Cabinet". There is no evidence that the draft Cabinet submission was in fact considered by Cabinet. The respondents have not made a submission as to what "position" they claim is revealed by this material or what "matter" they say was subject to Cabinet discussion. Having reviewed the evidence and the document, I am not satisfied that there are reasonable grounds for the respondents' claim. 1. Supplementary Document 7 is an email between IWG members and it does in fact reveal the position the Minister was recommended to take on the matter before Cabinet. See, for example, the final dot point in that email. This establishes that the document contained discussion of proposals forming the basis of the draft discussion paper and Cabinet submission which evidently amounts to reasonable grounds for the claim. In fact, the exemption is clearly made out: we grant leave to appeal. We would refuse access to the documents. Supplementary Document 16 1. RMS Supplementary Document 16 is dealt with below at [129(5)] as follows. 129. I do not accept that there are reasonable grounds for the claim that cl 2(1)(e) applies to:… (5) Document 16. Mr Kelly's evidence is that this document was created to explore various operational dimensions of one of the Interagency Working Group proposals contained in the Cabinet submission and that it reveals the nature of one of the options considered and addressed in the Cabinet submission. I am not satisfied that there are reasonable grounds for the claim that Document 16 tends to reveal the position which a Minister is considering taking, or has been recommended to take, in Cabinet. 1. This document is an attachment to RMS Supplementary Document 14. It discloses one of the options considered and addressed in a Cabinet submission which tends to reveal the position a Minister was considering taking or was recommended to take. There were clearly reasonable grounds for the decision. In fact, the exemption is clearly made out: we grant leave to appeal. We would refuse access to the documents. Supplementary Document 32 1. RMS Supplementary Document 32 is dealt with in the decision below at [129(7)] as follows. 129. I do not accept that there are reasonable grounds for the claim that cl 2(1)(e) applies to: (7) Redacted material in Document 32. Mr Fifield comments about the redacted material in Document 32 that it consists of direct quotes from the Discussion Paper and his comments on the implications of certain proposals on RMS. He says that these comments were later incorporated into the Discussion Paper and draft submission. He says, in addition, that the material redacted from Ms Williams' email reveals the position of the Minister for Planning with respect to one of the options contained in the Discussion Paper and submission. Whilst I accept this evidence, it does not establish that the information reveals or tends to reveal the position of a particular Minister. The comments of Mr Fifield do not, in my view, tend to reveal the position taken by a Minister. Whilst a small amount of the material redacted from Ms Williams' email reveals a position of the Minister for Planning, there is no evidence that Cabinet deliberated or made a decision about the matter. 1. It is enough that a small amount of material in the document revealed the position of the Minister for Planning, as looking at the email it plainly does. That being so, it was inevitable that there be a finding that there were reasonable grounds. Again, in fact, the exemption is clearly made out: we grant leave to appeal. We would refuse access to the documents. Grounds 5, 6, 7 and 8: Privilege 1. We now turn to the grounds based on legal professional privilege. Ground 5 concerns the Tribunal's decision to allow access to RMS Supplementary Documents 35, 36 and 37 (see order 3(f) in those proceedings). Grounds 6-8 relate to pp. 41-51 of RMS Supplementary Document 31 where the Tribunal held that the existing client legal privilege had been waived (see order 3(e) of the RMS proceeding). Ground 5 documents 35, 36 and 37 1. We accept the submission that the Tribunal made an obvious error in its orders in relation to Documents 35, 36 and 37, as, having accepted the claim that the information was subject to privilege, and having found there was an overriding public interest the decision below was that: 178. I am satisfied that the information which has been redacted in documents 35, 36, and 37 is subject to legal professional privilege under s 118 of the Evidence Act. Accordingly, there is an overriding public interest against disclosure of this information pursuant to GIPA Act, s 14(1) and Sch 1, cl 5. 1. The Tribunal's decision nevertheless to set aside the decision to refuse access and to grant access (see order 3(f)) is evidently inconsistent with the reasons. These documents were not the subject of an argument as to waiver, and there is no other apparent basis for the documents to be released. To the extent necessary we grant leave to appeal. There has been an error that is plain and readily apparent. The release of these documents should be refused. Grounds 6-8 pp. 41-51 of RMS Supplementary Document 31 1. RMS Supplementary Document 31, pp. 41-51 consists of an email chain with an email from RMS Survey Manager to RMS Legal Counsel with the text "FYI" which attached an advice from the Crown Solicitor's Office prepared for OEH and DPC. 2. Although the Tribunal found that the document had been privileged, it concluded that the privilege had been waived. Thus, it made order 3(e) for release. There was a debate on the appeal as to whether s 122 of the Evidence Act 1995 or the common law position set out in Mann v Carnell (1999) 201 CLR 1 was the applicable test. Below, the appellant had argued that the Evidence Act did apply, as the Tribunal concluded. But on appeal, the appellant argued that the common law position applied. 3. There are a number of other decisions at first instance which hold that privilege is to be dealt with by reference to the Evidence Act. Interesting as this question may be, by reason of a concession very properly made by Senior Counsel for the respondent, it is not necessary for us to conclude in this appeal which of the two approaches is correct. That is because of his concession that if the Tribunal was satisfied that the legal advice had been provided in the email on a confidential basis, then either that was an exception to waiver as set out in Mann v Carnell, or s 122(5)(a)(i) of the Evidence Act applied. That is, regardless of the applicable test, the concession would dictate the result. 4. Section 122 relevantly provides as follows: 122 LOSS OF CLIENT LEGAL PRIVILEGE: CONSENT AND RELATED MATTERS … (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) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law, or (iv) if the client or party is a body established by, or a person holding an office under, an Australian law--to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court." 1. Having examined the confidential evidence, it is plain on its face that the document, which was initially privileged, was circulated on a confidential basis. That is, the documents were provided expressly on a confidential basis and shared on that basis with persons who were employees of the Crown, even if they were not necessarily public servants (see above at [6-7]). Further, as the Tribunal below concluded at [194] and [195] "the manner in which the documents have been shared was not otherwise inconsistent with maintaining the confidentiality of the communications". 2. In view of the concession by the Respondent, we find that, at least in fact, the documents were circulated in a confidential manner and thus the exemption is made out and access should be refused. RMS Supplementary Documents 20 and 34 1. Finally, it appears by oversight, the Tribunal did not address RMS Supplementary Documents 20 and 34 in either its reasons or its orders. It is in fact an earlier draft from RMS Original Document 5 to which access was refused. Similarly, access should be refused here. Conclusion 1. For the reasons set out above we have found the Tribunal erred in law in its construction and application of cl 2(1)(e) of Sch 1 of the Government Information (Public Access) Act 2009 and its application of the principles of waiver of legal professional privilege. On that basis we would grant leave to the extent necessary, and then allow the appeal in part. The effect of the orders would be to dispose of the matters before the Tribunal below. As the matter is somewhat complex we now indicate the orders we are minded to make. Order 1. We direct the parties to confer within 7 days and either file consent orders or within a further seven days file and serve competing orders with no more than three pages of supporting submissions. Proposed Orders 1. Leave to appeal granted. 2. Appeal allowed in part. 3. In proceedings 2016/00378398, set aside order 3 made by the Tribunal and in substitution thereof an order that the decision of Transport for NSW to refuse access to the information in the redacted passages from the documents identified by Transport for NSW as Documents 1, 2 and 3 and the information in the document identified by Transport for NSW as Document 6 is affirmed. 4. In proceedings 2016/00378399, set aside order 3(a), (b), (c) and (d) made by the Tribunal and in substitution thereof an order that the decision of Roads and Maritime in regard to the following information is affirmed: 1. Information in documents referred to in the Supplementary Decision of the respondent as Documents 6, 14, 16, 20, 23, 24, 25, 29, 34 and 39; 2. All redacted information in the documents referred to in the Supplementary Decision of the respondent as Documents 1, 7, 12, 14, 32, 35, 36 and 37; 3. All information in the document entitled "Email dated 6 November 2015 (Coastal Reforms – Exposure Draft Coastal Management Bill Cabinet Submission – RMS Views)"; 4. Information in the document identified as "Email – RE: SENSITIVE: NSW CABINET: Invitation to review an ERC submission". ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 24 May 2018