Waite v Hornsby Shire Council [2010] NSWADT 280

Waite v Hornsby Shire Council [2010] NSWADT 280

Only the parts of the confidential discussions that concerned existing legal proceedings and legal advice obtained or sought from the Council's solicitors attracted legal professional privilege and were exempt under clause 10 of Schedule 1 of the Freedom of Information Act 1989. The Mayor's letter and Councillor...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
25 November 2010
Procedural Posture
Freedom of Information Merits Review Application / Review of Council Decision Refusing Access, Determined on the Papers Pursuant to Section 76 of the Administrative Decisions Tribunal Act 1997
Outcome
Council's decision varied.
Legal Topics
['access to Documents' 'legal Professional Privilege' 'exempt Documents' 'waiver of Privilege' 'confidential Council Meetings' 'deletion of Exempt Matter']
['administrative Law' 'freedom of Information' 'local Government'] ['access to Documents' 'legal Professional Privilege' 'exempt Documents' 'waiver of Privilege' 'confidential Council Meetings' 'deletion of Exempt Matter']

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Procedural Posture

Freedom of Information Merits Review Application / Review of Council Decision Refusing Access, Determined on the Papers Pursuant to Section 76 of the Administrative Decisions Tribunal Act 1997

Legal Issues

  1. 1 ["Whether the discussions held in confidence about 'Outstanding Sullage Issues' during the Council meeting of 12 August 2009 contained information exempt under clause 10 of Schedule 1 of the Freedom of Information Act 1989." "Whether any legal professional privilege in the confidential discussions was waived by the Mayor's letter of 24 February 2010 or Councillor Russell's email of 13 August 2009." 'Whether Mr Waite should be provided with a copy of the audio recording with exempt matter deleted under subsection 25(4) of the Freedom of Information Act 1989.']

Ratio Decidendi

Only the parts of the confidential discussions that concerned existing legal proceedings and legal advice obtained or sought from the Council's solicitors attracted legal professional privilege and were exempt under clause 10 of Schedule 1 of the Freedom of Information Act 1989. The Mayor's letter and Councillor Russell's email did not disclose the substance of that advice and did not waive privilege. Because the whole recording was not privileged, it was practical and appropriate to provide the recording with the exempt matter deleted.

Court Disposition

Council's decision varied.

Orders

  • ['The decision of the Council is varied to a decision that Mr Waite be provided, in accordance with the findings in these reasons for decision, with a copy of the audio recording of the confidential discussions about `Outstanding Sullage Issues` with the exempt matter deleted.']