Buttrose v NSW Trustee and Guardian [2023] NSWCATAD 165

Buttrose v NSW Trustee and Guardian [2023] NSWCATAD 165

The disputed exhibit was a confidential counsel's advice prepared for the dominant purpose of providing legal advice and legal services in current Supreme Court proceedings, and it was provided to the Supreme Court only on a limited confidential basis for approval of a settlement. That conduct did not waive privilege. The Tribunal was not satisfied that the advice was prepared in perpetration of a fraud. Accordingly, cl 5 and cl 5A of Sch 1 to the GIPA Act applied, creating a conclusive presumption of an overriding public interest against disclosure, so the correct and preferable decision was to refuse access and affirm the respondent's decision.

Jurisdiction
Australia
Judgment Date
26 June 2023
Procedural Posture
Administrative Review of a Decision Refusing Access to Government Information Under the Government Information (public Access) Act 2009 (nsw) / Final Decision After Hearing
Outcome
The respondent's decision refusing access was affirmed.
Legal Topics
['gipa Access Application' 'conclusive Presumption of Overriding Public Interest Against Disclosure' 'client Legal Privilege' 'privilege Generally' 'waiver of Privilege' 'fraud Exception to Privilege' 'confidential Evidence in NCAT Administrative Review']
['administrative Law' 'government Information' 'legal Professional Privilege'] ['gipa Access Application' 'conclusive Presumption of Overriding Public Interest Against Disclosure' 'client Legal Privilege' 'privilege Generally' 'waiver of Privilege' 'fraud Exception to Privilege' 'confidential Evidence in NCAT Administrative Review']

Case Brief

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Procedural Posture

Administrative Review of a Decision Refusing Access to Government Information Under the Government Information (public Access) Act 2009 (nsw) / Final Decision After Hearing

Legal Issues

  1. 1 ['Whether the disputed exhibit was subject to legal professional privilege under cl 5 of Sch 1 to the Government Information (Public Access) Act 2009 (NSW).' 'Whether cl 5A of Sch 1 to the Government Information (Public Access) Act 2009 (NSW) applied because the document was objected to as privileged in court proceedings and was not compelled to be produced.' 'Whether privilege had been waived when the disputed exhibit was provided to the Supreme Court on a confidential basis for approval of a compromise settlement.' 'Whether the claim for privilege was invalid because the disputed exhibit was allegedly prepared in perpetration of a fraud.' "Whether the respondent's refusal of access should be affirmed as the correct and preferable decision."]

Ratio Decidendi

The disputed exhibit was a confidential counsel's advice prepared for the dominant purpose of providing legal advice and legal services in current Supreme Court proceedings, and it was provided to the Supreme Court only on a limited confidential basis for approval of a settlement. That conduct did not waive privilege. The Tribunal was not satisfied that the advice was prepared in perpetration of a fraud. Accordingly, cl 5 and cl 5A of Sch 1 to the GIPA Act applied, creating a conclusive presumption of an overriding public interest against disclosure, so the correct and preferable decision was to refuse access and affirm the respondent's decision.

Court Disposition

The respondent's decision refusing access was affirmed.

Orders

  • ['The decision of the respondent dated 13 February 2022, as varied by its written submissions filed on 27 February 2023, is affirmed.']