Insights

In brief

The case of Zacka and Fraser Coast Regional Council; BGM Projects Pty Ltd (Third Party) & Ors [2019] QICmr 2 concerned an application made by a landowner (Landowner) to the Office of the Information Commissioner Queensland (OIC) to review a decision made by the OIC in which it decided to refuse disclosure of a "without prejudice" letter (Letter) that contained information regarding a negotiation between the Fraser Coast Regional Council (Council) and a developer (Developer) who neighbours the Landowner's property. 

The Landowner argued the disclosure of the Letter would be of "public interest".

The OIC found that disclosure of the Letter ought be refused under section 47(3)(b) of the Right to Information Act 2009 (RTI Act) on the basis that its disclosure would, on balance, be contrary to the public interest.

Background

The Landowner and the Developer are in an ongoing dispute in the Supreme Court of Queensland regarding drainage and overland flow issues in connection with their adjoining properties. The Developer alleges that a concrete structure constructed by the Landowner has caused drainage problems on its land. The Landowner however argues that the concrete structure was erected as a result of the Developer's development causing overland flow and drainage problems on its property. 

The Council additionally commenced proceedings in the Planning and Environment Court against the Landowner seeking enforcement orders in respect of alleged operational works being carried out on the Landowner's property without the necessary development permit. The alleged operational works includes the construction of the concrete structure. 

The Landowner applied to the Council for access to documents relating to communications, reports, or meetings with the Developer, or information regarding the Council's communications with hydraulic engineering consultants in relation to the Landowner's and Developer's respective properties.  

The Council refused access to all of the documents requested by the Landowner. The Landowner applied to the OIC who formed the view that some of the refused information could be disclosed. The Council additionally undertook searches in relation to additional information and located the Letter the subject of the proceeding. The Letter concerned without prejudice negotiations between the Council and the Developer. The Landowner requested the Letter be disclosed and the Council refused disclosure. 

Landowner's submissions

The Landowner argued there were a number of public interest factors weighing in favour of the Letter being disclosed, which were as follows:

  • access to the Letter would contribute to informed debate about overland flow, drainage and hydrology matters;

  • hydrology matters are a matter of environmental risk and public health;

  • disclosure would provide an insight to the expenditure of Council funds and enhance the Council's accountability as a "model litigant";

  • disclosure would inform the community about the Council's operations in the context of development approvals and compliance; 

  • disclosure would enhance the Landowner's "fair treatment" and contribute to the administration of justice in relation to the ongoing dispute; and

  • at the time of the without prejudice negotiation, the Council and the Developer were not opposing parties to litigation.

The OIC found that disclosure of the Letter would moderately enhance the Council's accountability and transparency

The OIC afforded moderate weight to the Landowner's submission that disclosure would demonstrate the Council's accountability in that it would reveal the extent of the matters discussed at the without prejudice meeting. The OIC also found disclosure would moderately enhance the Council's transparency in terms of how it fulfilled its obligations as a model litigant as the Letter demonstrated that the Council was seeking to resolve the disputes outside of a formal court process.

The OIC afforded minimal weight to the submissions that disclosure would contribute to public debate, inform the public about Council's processes and expenditure, and that the Council and the Developer were not opposing parties

The OIC found the Letter was contextually specific to the disputes between the Landowner, the Developer and the Council. The OIC therefore afforded low weight to the Landowner's submission that disclosure of the Letter would enhance informed public debate. 

The OIC considered whether or not the Letter informed the community about the Council's public expenditure, or public health and safety risks. The OIC found that as the Letter did not refer to litigation expenses or costs incurred by the Council in relation to its dispute with the Landowner, disclosure would not allow an insight into the Council's expenditure of public funds. The OIC further noted that the Letter did not reveal any concerns regarding public health and environmental risks in respect to the land. 

The OIC lastly considered whether disclosure of the Letter would advance the Landowner's "fair treatment" in the ongoing proceedings. The OIC found that the without prejudice negotiation the subject of the Letter had been referred to in published court transcripts in which proposed outcomes regarding the involvement of hydraulic experts, approval processes and relevant site works were revealed. The OIC therefore awarded low weight to this submission due to the nature and extent of the information already released. 

The OIC accepted the Council and the Developer were not opposing parties in litigation during the without prejudice negotiation. The OIC however found that as both parties were involved in separate proceedings against the Landowner with respect to the concrete structure, it could be foreseeable that if there was a resolution concerning certain issues, more than one of the proceedings could be resolved. Additionally, the OIC referred to court transcripts where it was stated that the related proceedings could be settled at the same time by alternative dispute resolution. The OIC therefore held that the Council and the Developer have opposing interests concerning the hydrological issues impacting the respective properties and that the parties were in discussions as part of an alternative dispute resolution process. 

The OIC afforded significant weight to the preservation of confidentiality afforded by without prejudice activities

The OIC noted the RTI Act recognises there is a public interest in the non-disclosure of information that could reasonably be expected to impede the administration of justice (see [27]). 

The OIC found the Council engaged in a without prejudice meeting with the Developer in an attempt to resolve the disputes between the parties. The OIC held there was a mutual understanding between the Council and the Developer of confidence in respect of the without prejudice negotiation. The OIC afforded high weight to the understanding of confidence as it found it is of public interest to protect confidential discussions.

The OIC concluded the disclosure of the Letter would prejudice the Council's ability to conduct future negotiations of that nature particularly in the planning and environment context. The OIC held that eroding the confidence afforded to without prejudice meetings would diminish the viability of the alternative dispute resolution process.

The OIC concluded that disclosing confidential information communications made in the course of attempting to resolve the disputes, would prejudice the Council's ability to engage in future without prejudice meetings and impede the administration of justice.

Conclusion

The OIC afforded significant weight to the factors favouring non-disclosure and held that disclosure of the Letter would be contrary to public interest. 

The OIC varied the decision under review and refused disclosure of the Letter under section 47(3)(b) of the RTI Act.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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