Waite v Hornsby Shire Council [2007] NSWADT 265

Waite v Hornsby Shire Council [2007] NSWADT 265

Council had not waived privilege over paragraphs 59 to 142 of the Advice because the disclosed material did not reveal the substance of that separate subject matter concerning possible avenues of appeal or future options. However, by disclosing surrounding and interconnected parts of the Advice, Council impliedly waived privilege over the first five sentences of paragraph 6, paragraph 14, paragraph 16 except the last sentence, paragraph 33 except the penultimate sentence, and paragraphs 48 to 50. No public interest consideration compelled or strongly justified overriding privilege for the remaining exempt material. Council's decision on the Instructions was not the correct and preferable...

Jurisdiction
Australia
Judgment Date
16 November 2007
Procedural Posture
Application for Review Under the Freedom of Information Act 1989 of a Decision Refusing Access to Documents / Principal Matter
Outcome
Council's decision concerning the Advice was varied to grant access to additional parts; Council's decision concerning the Instructions was set aside and remitted.
Legal Topics
['access to Documents' 'exempt Documents' 'waiver of Legal Professional Privilege' 'override Discretion' 'adequacy of Search']
['administrative Law' 'freedom of Information' 'legal Professional Privilege'] ['access to Documents' 'exempt Documents' 'waiver of Legal Professional Privilege' 'override Discretion' 'adequacy of Search']

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Procedural Posture

Application for Review Under the Freedom of Information Act 1989 of a Decision Refusing Access to Documents / Principal Matter

Legal Issues

  1. 1 ['Whether privilege in the deleted paragraphs of the Advice of Mr T Robertson SC had been waived and, if not, whether the override discretion should be exercised to release the document in whole.' 'Whether Hornsby Shire Council had adequately searched for documents concerning the Instructions to Mr T Robertson SC.']

Ratio Decidendi

Council had not waived privilege over paragraphs 59 to 142 of the Advice because the disclosed material did not reveal the substance of that separate subject matter concerning possible avenues of appeal or future options. However, by disclosing surrounding and interconnected parts of the Advice, Council impliedly waived privilege over the first five sentences of paragraph 6, paragraph 14, paragraph 16 except the last sentence, paragraph 33 except the penultimate sentence, and paragraphs 48 to 50. No public interest consideration compelled or strongly justified overriding privilege for the remaining exempt material. Council's decision on the Instructions was not the correct and preferable...

Court Disposition

Council's decision concerning the Advice was varied to grant access to additional parts; Council's decision concerning the Instructions was set aside and remitted.

Orders

  • ["The Council's decision in regard to the Advice of Mr T Robertson SC, dated 1 February 2006, is varied by granting Mr Waite access to the following additional paragraphs or part paragraphs of the Advice: first 5 paragraphs of paragraph 6; paragraph 14; paragraph 16, other than the last sentence; paragraph 33, other...