Bellamy v Transport for NSW - [2019] NSWCATAD 54

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Bellamy v Transport for NSW [2019] NSWCATAD 54
Hearing dates: 21 November 2019
Date of orders: 05 April 2019
Decision date: 05 April 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
(1) Pursuant to section 63(3)(d) of the Administrative Decisions Review Act 1997, the decision under review is set aside. The matter is remitted for reconsideration in relation to the issue of whether further information falling within the scope of the access application is held by the Respondent’s Transport Coordination Division.
(2)   The redetermination is to be completed by 23 April 2019
(3)   The decision under review is otherwise affirmed.
(4)   The matter is listed for a further case conference at 9:30 am on 7 May 2019

Catchwords: Administrative Law – –access to government information - cabinet material –whether reasonable grounds for withholding information established - commercially confidential information – reasonableness of searches.
Legislation Cited: Government Information (Public Access) Act 2009
Civil and Administrative Tribunal Act 2013
Administrative Decisions Review Act 1997
Cases Cited: Amos v Central Coast Council [2018] NSWCATAD 101
BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156
Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5
D'Adam v New South Wales Treasury [2015] NSWCATAP 61
Park v Transport for NSW [2018] NSWCATAD 82
Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353
Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7, (1994) 1 QAR 464
Webb v Port Stephens Council [2018] NSWCATAP 224
Texts Cited: Nil
Category: Principal judgment
Parties: John Bellamy (Applicant)
Transport for NSW (Respondent)
Representation:
Counsel:
D Birch (Respondent)
Solicitors:
J Bellamy (Self Represented)(Applicant
Crown Solicitor’s Office (Respondent)

File Number(s): 2018/00189716
Publication restriction: Nil

Reasons for Decision

Introduction

This is an application for review of a decision by Transport for NSW (“the Respondent” or “the agency” or “TfNSW”) in response to an access application brought by Mr John Bellamy (“the Applicant”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”). Mr Bellamy is seeking information relating to traffic modelling for the CBD and South East Light Rail project (“the CSELR”).

The CSELR

The CSELR is a light rail service, currently under construction, which will connect Circular Quay, the Sydney CBD and Sydney's South East. The CSELR project also includes the introduction of a pedestrian zone along George Street and integration of the new light rail network with the existing Inner West Light Rail. The Respondent has been responsible for planning, procuring and delivering the CSELR project since 2011.

The access application

By his access application made on 16 December 2016 the Applicant sought:

“1   Information revealing
a   The licensed and forecast average operational loadings for the light rail vehicles in the morning peak hour from 8am - 9am on the CSELR
b   The number of buses to be replaced by the light rail vehicles in the morning peak hour from 8am…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWCATAD 54
Decision Date: 05 April 2019

CaseChat Overview and Summary

The case of Bellamy v Transport for NSW involved an application for internal review of a decision by Transport for NSW to refuse a request for access to certain documents under the Government Information (Public Access) Act 2009 (GIPA). The applicant sought access to documents related to the procurement of a new bus fleet. The case was heard in the Land and Environment Court of New South Wales.

The central legal issue in the case was whether the respondent had established reasonable grounds for refusing the applicant's access application. Specifically, the court had to determine whether the documents in question were exempt from disclosure under the Act, either because they were cabinet material or commercially confidential. The court also had to consider whether the respondent had conducted a reasonable search for the documents.

The court found that the respondent had not established reasonable grounds for refusing the access application in relation to certain documents. The court held that the respondent had not demonstrated that the documents were exempt from disclosure under the Act, as they did not meet the criteria for being cabinet material or commercially confidential. The court also found that the respondent had not conducted a reasonable search for the documents, as they had not considered all relevant sources of information. The court set aside the decision under review and remitted the matter for reconsideration in relation to the issue of whether further information falling within the scope of the access application is held by the respondent’s Transport Coordination Division. The decision under review was otherwise affirmed, and the matter was listed for a further case conference.

Orders

Orders of the court

(1) Pursuant to section 63(3)(d) of the Administrative Decisions Review Act 1997, the decision under review is set aside. The matter is remitted for reconsideration in relation to the issue of whether further information falling within the scope of the access application is held by the Respondent’s Transport Coordination Division.

(2) The redetermination is to be completed by 23 April 2019

(3) The decision under review is otherwise affirmed.

(4) The matter is listed for a further case conference at 9:30 am on 7 May 2019

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bellamy v Transport for NSW [2019] NSWCATAD 54
Hearing dates:	21 November 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1) Pursuant to section 63(3)(d) of the Administrative Decisions Review Act 1997, the decision under review is set aside. The matter is remitted for reconsideration in relation to the issue of whether further information falling within the scope of the access application is held by the Respondent’s Transport Coordination Division. (2) The redetermination is to be completed by 23 April 2019 (3) The decision under review is otherwise affirmed. (4) The matter is listed for a further case conference at 9:30 am on 7 May 2019
Catchwords:	Administrative Law – –access to government information - cabinet material –whether reasonable grounds for withholding information established - commercially confidential information – reasonableness of searches.
Legislation Cited:	Government Information (Public Access) Act 2009 Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997
Cases Cited:	Amos v Central Coast Council [2018] NSWCATAD 101 BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156 Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5 D'Adam v New South Wales Treasury [2015] NSWCATAP 61 Park v Transport for NSW [2018] NSWCATAD 82 Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353 Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7, (1994) 1 QAR 464 Webb v Port Stephens Council [2018] NSWCATAP 224
Texts Cited:	Nil
Category:	Principal judgment
Parties:	John Bellamy (Applicant) Transport for NSW (Respondent)
Representation:	Counsel: D Birch (Respondent) Solicitors: J Bellamy (Self Represented)(Applicant Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00189716
Publication restriction:	Nil