Posted on July 21, 2021 by 90

GIPA Act and Privileged Legal Advice

The NSW Civil and Administrative Tribunal recently discussed the risk of waiving privilege where the substance of legal advice is inadvertently disclosed.

The proceedings arose out of an application for information under the Government Information (Public Access) Act 2009 (GIPA Act). The issue was whether legal privilege that protected the confidentiality of a letter of legal advice had been waived by comments made by a government official about the existence of the advice. It was contended that privilege was waived when the substance of the advice was said in a meeting between the parties. The Tribunal held that privilege was not waived.

Facts

In Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 149, the Applicant was the developer of land in Parramatta which had the benefit of a development consent for the construction of a 30 storey mixed use development.

As a result of unauthorised building work, the City of Parramatta Council issued a stop work order to cease all building work on the site.

The Applicant subsequently made an application to access information relating to the development from the Council. One of the documents that fell within the scope of the requested documents was a letter of legal advice from the Council’s external solicitors.

Conclusive Presumption under the GIPA Act

Generally, when a government agency makes a determination on whether or not to disclose government information sought in an access application under the GIPA Act, it must apply the test at section 13 which states:

There is an overriding public interest against disclosure of government information…if (and only if) there are public interest considerations against disclosure, and on balance, those considerations outweigh the public interest considerations in favour of disclosure.

However, the balancing test need not be applied to the limited categories of government information for which it is conclusively presumed that there is an overriding public interest against disclosure of the information. These categories of government information are listed in Schedule 1 of the GIPA Act.

Relevantly, clause 5 of Schedule 1 of the Act provides that:

(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.

Did the Council waive privilege over the legal advice?

One of the issues for determination by the Tribunal was whether the Council waived privilege over the legal advice, so that clause 5 of Schedule 1 to the GIPA Act does not apply. In AIN v Medical Council of New South Wales [2015] NSWCATAP at [20], the Appeal Panel held that the provisions of the Evidence Act 1995 apply to the determination of whether privilege has been waived.

Client legal privilege is lost where the client, who has the right to claim privilege over a confidential communication, has acted in a manner that is inconsistent with that right by knowingly and voluntarily having disclosed the substance of the communication to another person, or the substance of the communication has been disclosed with the express or implied consent of the client (Mann v Carnell [1999] HCA 66, (1999) 201 CLR 1, at [29]). The party claiming that there has been a waiver bears the onus to prove, on the balance of probabilities, that the client has acted in a manner that is inconsistent with its right to claim privilege over the communication.

The Applicant submitted that the Council impliedly waived its right to claim privilege by disclosing at a meeting with the Applicant the substance of the advice.

There was evidence given by both parties as to what was disclosed at that meeting. The Tribunal found that at the meeting the Council’s representative said:

• Council had obtained its own legal advice and did not agree with the advice obtained by the Applicant, and
• that the Council required the Applicant to obtain a new development consent for an alternate groundwater management system to lift a stop work order that was imposed on the development site.

The issue in the matter was whether the above statements were sufficient to constitute an implied waiver of privilege, by reason of the Council having acted in a manner inconsistent with the privilege by allegedly disclosing the substance of the Council’s legal advice. The Tribunal considered the following principles in the case law:

• the substance of the advice may well be disclosed if the ultimate conclusion without the supporting reasoning process is revealed. At that stage, there has been a disclosure of the substance of the advice. The ultimate conclusion in its own right is the ‘essence or vital part of the advice‘ (Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 at 19),
• a statement which reveals the contents of legal advice, even if it does so in a summary way or by reference only to a conclusion, will, or probably will, result in a waiver (Switchcorp Pty Ltd v Multiemedia Ltd [2005] VSC 425),
• a statement which refers to legal advice, even if it associates that advice with conduct undertaken or with a belief held by the client, will not, or probably will not, result in a waiver (Switchcorp)

The Applicant submitted that the Council’s remarks at the meeting revealed the contents of the legal advice. Rather than suggesting that the Council’s actions were justified by a legal advice, the substance of the advice was stated including that it was contrary to the Applicant’s legal advice, which was disclosed to the Council prior to the meeting.

The Tribunal disagreed with the Applicant. In doing so, the Tribunal held:

Disclosure of the existence of legal advice obtained in response to the Applicant’s Legal Opinion would not be sufficient to amount to a waiver. Having regard to the context and circumstances of the case, the Tribunal is not persuaded that Mr Lyth’s statements at the meeting were a disclosure of the substance of the Council’s legal advice. Mr Lyth’s statement at the meeting that the Council’s legal advice differed from that in the Applicant’s Legal Opinion was not, in the Tribunal’s view, inconsistent with maintaining confidentiality in the terms of that advice. The meeting notes confirm that the Council’s position that a development application was required was maintained, and Mr Lyth’s statement that the [stop work order] would remain in place until such time that a new development consent was issued would not, on that basis, constitute a waiver of privilege.

The Tribunal is satisfied that there was no waiver of the privilege attached to the information. Accordingly, applying s 14(1) and cl 5 of Sch 1 to the GIPA Act, it is conclusively presumed that there is an overriding public interest against disclosure of the information.

Conclusion

Whether privilege has been waived is a matter of fact and degree which will turn on the circumstances. Making a statement which refers to the summary of a conclusion of legal advice, may be enough to have disclosed the ‘substance’ of the advice, thereby waiving privilege and making the legal advice susceptible to an application under the GIPA Act.

In this decision, the Tribunal found that the Council did not disclose the substance of its legal advice by saying that it received legal advice that differed from the Applicant’s advice.

This case serves as a reminder about the importance of protecting the confidentiality of legal advice and other confidential information and the risks of waiving privilege where a legal advice is discussed.

A copy of the decision is found here.

If you have any questions about the case or other GIPA Act related matters, please contact us on (02) 8235 9700 or leave a comment below.