Australia, Sept. 6 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 5:

1. On 5 March 2024, Mr Craigh McNeill (the appellant) made an access application under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) to Clarence Valley Council (the Council or the respondent). In response to the access application, the respondent provided certain documents and withheld (or redacted) other documents on the basis that information contained in those documents is subject to "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)" under s 14 and cl 5(1) of Sch 1 to the GIPA Act. We refer in these reasons to legal professional privilege or privilege.

2. On 13 May 2024, the appellant sought administrative review of the decision made by the respondent on 4 April 2024. The respondent subsequently reconsidered its 4 April 2024 decision, and issued a reconsideration decision on 1 July 2024 (referred to in these reasons as the "1 July 2024 Decision"). The Administrative and Equal Opportunity Division (AEOD) of the NSW Civil and Administrative Tribunal (the Tribunal or NCAT) affirmed the 1 July 2024 Decision: see McNeill v Clarence Valley Council [2024] NSWCATAD 325. It is this Tribunal decision which is under appeal.

3. The appellant says that the Tribunal made errors on questions of law and errors relating to the merits of the decision. For errors on questions of law, no leave to appeal is required under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). For his grounds which do not involve error on questions of law, the appellant seeks leave to appeal: NCAT Act, s 80(2)(b).

4. The respondent submits that the appeal brought by the appellant has no basis in fact or law. The respondent says it has searched and released documents held by it, other than those withheld because they contain excluded information in respect of which there is a conclusive presumption against disclosure under the GIPA Act at Sch 1, cl 5.

5. For the reasons which follow, we have decided to allow the appeal on several grounds which raise questions of law (and to grant leave to appeal on the merits in relation to a further ground). We set aside the Tribunal's decision, with the matter to be reconsidered by the AEOD in accordance with the guidance provided in these reasons for decision. Further evidence is to be allowed in the reconsidered Tribunal proceedings.

Background to the decision under appeal

6. In 2022 and 2023, there were communications between Yamba Community Action Network Inc. (Yamba CAN) and the respondent concerning the possible demolition and rebuilding (or refurbishment) of a community centre. On 19 December 2022, the law firm Sparke Helmore was engaged by the respondent in relation to allegedly defamatory statements made by several members of Yamba CAN about Council staff, including the General Manager Ms Black. On 18 July 2023, a Concerns Notice relating to alleged defamatory statements made by Yamba CAN (and requesting rectification action) was issued by the law firm, containing the opening statement that "We act for Clarence Valley Council". At some point in the second half of 2023, Ms Black in her private (or individual) capacity retained the law firm to act on her behalf (and not on behalf of the respondent).

7. On 5 March 2024, the appellant lodged an access application with the respondent for government information under the GIPA Act, resulting in the respondent's first decision dated 4 April 2024. In relation to the request for information about the Concerns Notice dated 18 July 2023 and associated correspondence between the respondent and Sparke Helmore (Request 1), the appellant was informed that his request concerned Ms Black's "private matter" and that this information "is considered private and confidential" and "not within the scrutiny of Council". In relation to other parts of the access request (Requests 2, 3, 4 and 5), the respondent provided documentation held by the respondent, with redactions made on the basis that information is subject to legal professional privilege, relying on the public interest consideration against disclosure of such information under cl 5(1) of Sch 1 to the GIPA Act.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19872790fdc918e2b2ae06ea)

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