Tregeagle and Gold Coast City Council

Application number:
2000 L0034
Decision date:
Monday, Nov 19, 2001

Tregeagle and Gold Coast City Council
(2000 L0034, 19 November 2001) 

The applicant, who had been the developer of a rural subdivision, sought access to a series of reports, commissioned by the Council from geotechnical engineers, regarding damage to a section of a roadway, and the collapse of a crib wall in the subdivision area.  The Council submitted that those reports had been created for the dominant purpose of use in legal proceedings against the applicant, and hence that they attracted legal professional privilege, and exemption under s.43(1) of the FOI Act. 

Based on his examination of the contents of the reports, and contemporaneous documentary evidence regarding the commissioning of the reports, the Deputy Information Commissioner decided that the reports were not created for the dominant purpose of use in litigation, and did not therefore qualify for exemption under s.43(1) of the FOI Act. 

The Deputy Information Commissioner decided that the reports were created to provide expert opinion to the Council on the extent of the remedial works required to rectify the damage sustained in the subdivision area, and that any contemplated use of the reports in anticipated litigation was, at best, an ancillary purpose.  In respect of one of the reports, the Deputy Information Commissioner commented that, even if the report had attracted legal professional privilege at the time of its creation, the privilege must have been waived shortly thereafter by the Council's intentional and voluntary disclosure of the report to the applicant for the purpose of communicating the extent of the remedial works which the Council required the applicant to undertake.