Holman v Warringah Council [2015] NSWCATAD 215

Holman v Warringah Council [2015] NSWCATAD 215

All documents remaining in the schedule except document 33 were confidential communications or confidential documents prepared for the dominant purpose of providing legal advice to the Council or for professional legal services relating to possible legal proceedings, and disclosure would reveal confidential communications or contents. They therefore satisfied s 118 or s 119 of the Evidence Act 1995 and fell within Schedule 1 cl 5 of the GIPA Act, with no evidence of waiver. Document 33 was not shown to be privileged because there was no evidence establishing the legal status, position or independence of Elizabeth Caruso, so the Council did not discharge its burden for that document.

Jurisdiction
Australia
Judgment Date
19 October 2015
Procedural Posture
Administrative Review of Decision Refusing Access to Government Information Under the Government Information (public Access) Act 2009 / NCAT Review of Second Internal Review Decision Dated 18 February 2015
Outcome
Decision under review varied.
Legal Topics
['gipa Access Application' 'client Legal Privilege' 'legal Professional Privilege' 'conclusive Presumption of Overriding Public Interest Against Disclosure' 'in House Lawyers' 'dominant Purpose Test' 'waiver of Privilege']
['administrative Law' 'government Information Access' 'evidence'] ['gipa Access Application' 'client Legal Privilege' 'legal Professional Privilege' 'conclusive Presumption of Overriding Public Interest Against Disclosure' 'in House Lawyers' 'dominant Purpose Test' 'waiver of Privilege']

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Procedural Posture

Administrative Review of Decision Refusing Access to Government Information Under the Government Information (public Access) Act 2009 / NCAT Review of Second Internal Review Decision Dated 18 February 2015

Legal Issues

  1. 1 ["Whether Warringah Council's refusal to provide access to documents on the ground of client legal privilege was the correct and preferable decision under s 63 of the Administrative Decisions Review Act 1997." 'Whether the documents were privileged from production in legal proceedings under ss 118 or 119 of the Evidence Act 1995 so as to fall within Schedule 1 cl 5 of the Government Information (Public Access) Act 2009.' 'Whether personal factors and public interest considerations in favour of disclosure could outweigh client legal privilege where Schedule 1 cl 5 applies.' 'Whether privilege had been waived.' 'Whether document 33 was shown to satisfy the requirements for client legal privilege.']

Ratio Decidendi

All documents remaining in the schedule except document 33 were confidential communications or confidential documents prepared for the dominant purpose of providing legal advice to the Council or for professional legal services relating to possible legal proceedings, and disclosure would reveal confidential communications or contents. They therefore satisfied s 118 or s 119 of the Evidence Act 1995 and fell within Schedule 1 cl 5 of the GIPA Act, with no evidence of waiver. Document 33 was not shown to be privileged because there was no evidence establishing the legal status, position or independence of Elizabeth Caruso, so the Council did not discharge its burden for that document.

Court Disposition

Decision under review varied.

Orders

  • ['Document number 33 (exhibit CR 8, p 283) is to be released.' 'In all other respects the decision under review is affirmed.']