Long battle to see asbestos reports fails

A long battle by a Mt Victoria resident to see two reports on council's asbestos mismanagement has failed after a tribunal ruled against him.

Mark Lipscombe

Mark Lipscombe

Mark Lipscombe had sought copies of the reports under Government Information (Public Access) legislation.

He first applied in March 2018 to see the results of the inquiry conducted by Michael Tooma of Clyde and Co.

Council refused, citing legal professional privilege.

Mr Lipscombe appealed to the Information and Privacy Commissioner (IPC) which found legal professional privilege did not exist and ordered council to make a new decision. But council again refused access.

So Mr Lipscombe took his case to the NSW Civil and Administration Tribunal (NCAT), arguing that there was no legal professional privilege.

He also pointed out that in December, 2017, council unanimously passed a motion which read in part: "That the council authorises Mr Tooma to conduct his investigation in consultation with SafeWork NSW, the United Services Union (USU) and all other relevant stakeholders and to publicly release his report and to make his report available to the Minister for Local Government, SafeWork NSW and the USU."

Council maintained that their lawyer, Trevor Cork, had engaged Mr Tooma so that the reports were, in fact, covered by privilege.

But Mr Lipscombe countered that Mr Cork was simply acting as council's agent.

Last month, NCAT found in council's favour.

Senior member of the tribunal, Stephen Montgomery, wrote: "I am satisfied that a client-lawyer relationship existed between [Mr Cork's firm] McPhee Kelshaw and the council when McPhee Kelshaw engaged Clyde & Co. The council was the client and McPhee Kelshaw was the lawyer.

"The reports were commissioned by McPhee Kelshaw for the purpose of McPhee Kelshaw providing the council with legal advice and/or legal services in respect of anticipated litigation.

"In my view, the council's decision to refuse to provide access to the information was the correct and preferable decision and therefore it should be affirmed," Mr Montgomery ruled.

Mr Lipscombe could not be contacted for comment.