Bayne v Department of Environment and Heritage

[2016] NSWCATAD 52

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Bayne v Department of Environment and Heritage [2016] NSWCATAD 52
Hearing dates:	On the papers
Date of orders:	15 March 2016
Decision date:	15 March 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	1. The decision of the Respondent is affirmed.
Catchwords:	GIPA Act – Legal Professional Privilege - Overriding public interest against disclosure – Conclusive presumption – Personal considerations of the applicant – Positive application for other material.
Legislation Cited:	Evidence Act 1995 Government Information (Public Access) Act 2009
Cases Cited:	Hutchinson v Walcha Shire Council [2015] NSWCATAD 132
Category:	Principal judgment
Parties:	Rosemary Bayne (Applicant) Office of Environment and Heritage (Respondent)
Representation:	On the papers
File Number(s):	1510449

Reasons for decision

1. On 30 July 2015 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for access to documents concerning the applicant. These documents were held by the respondent agency.

2. That access application was made on 24 March 2015 to the respondent under the Government Information (Public Access) Act 2009 (the GIPA Act) whereby the applicant was seeking copies of specific information relating to communications by the respondent agency in respect of three points arising from a media article. The access application requested:

On Sunday, March 15, 2015, the Sun Herald published an article on page 25 titled ‘Iconic case still for sale’ written by Kristen Ochs. The article stated:

1. The Jenolan caves had failed to secure a private lessee, more than two years after the NSW government opened it up for privatisation;

2. In 2012, then-environment minister Robyn Parker announced an expression of interest process for private operators looking to manage services in the visitor use zone, which included running caves tours and operating historic Caves House; and

3. Bob Conroy, administrator of Jenolan Caves, said it would be inappropriate to comment publically on staffing matters other than to say that the trust is implementing reforms consistent with the appropriate laws.

I require a copy of all communications between April 2011 and now in relation to the 3 points listed above.

3. By way of background, the applicant is one of a number of former business owners who traded from the Jenolan Caves location prior to their leases being cancelled and an administrator being appointed. There have been a number of GIPA Act applications before the Tribunal for access to government information from two specific agencies including the respondent in this matter.

4. The applicant represents a group of these business owners formerly associated with Jenolan Caves. The above background is in my view necessary in order to understand the context of the applications for information as in the current matter the applicant varied or amended her access application shortly after she sought review in the Tribunal.

5. Initially the respondent agency decided that the application was invalid in accordance with section 51 (1) (b) of the GIPA Act in so far…