Berryman v Murray River Council

Case [2023] NSWCATAD 70

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Berryman v Murray River Council [2023] NSWCATAD 70
Hearing dates: 6 March 2023
Date of orders: 24 March 2023
Decision date: 24 March 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:

The respondent’s decision dated 2 December 2022 is set aside and the following decision is made in substitution:

1. The Respondent is to provide the applicant with view-only access to the Centium report pursuant to s 72(1)(a) of the Government Information (Public Access) Act 2009 (NSW).

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – public interest test – balancing the public interest - Copyright – whether any fair dealing exception is established – lack of evidence in support of submissions – form of access

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Copyright Act 1968 (Cth)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Amos v Central Coast Council [2018] NSWCATAD 101

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

Computer Edge Pty Ltd v Apple Computer Inc (1986) 60 ALJR 313

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46

Hoggett v Campbelltown City Council [2019] NSWCATAD 258

Hollinrake v Trusswell [1894] 3 ChD 420

Hurst v Wagga Wagga City Council [2011] NSWADT 307

IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458

Leech v Sydney Water Corporation [2010] NSWADT 298

MJA Scientifics International Pty Ltd v S C Johnson and Son Pty Ltd (1998) 43 IPR 287

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254

Nowak v Pellicciotti [2018] NSWCATAP 245

Sandy v Kiama Municipal Council [2019] NSWCATAD 49

Taylor v Destination NSW [2017] NSWCATAD 272

University of New South Wales v Moorhouse (1975) 133 CLR 1

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479

Walker v Gosford City Council [2016] NSWCATAD 207

Webb v Port Stephens Council [2022] NSWCATAD 404

YG & GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None

Category:Principal judgment
Parties: Kylie Berryman (Applicant)
Murray River Council (Respondent)
Information and Privacy Commissioner
Representation: Solicitors:
P Hill (Applicant)
J McKenzie (Respondent)
J Kavanagh (Information and Privacy Commissioner)
File Number(s): 2022/00346281
Publication restriction: None

REASONS FOR DECISION

Background

  1. These proceedings concern requests that Kylie Berryman (the applicant) made to Murray River Council (the respondent) on 15 October 2021 and 9 August 2022 for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act).

First GIPA request

  1. In the request dated 15 October 2021, the applicant sought access to a “copy of the Centium Report into Council & the Moama Ethanol Plant (known as Murray River Energy)”.

  2. On 15 November 2021, the respondent wrote to…

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Details
AGLC
Berryman v Murray River Council [2023] NSWCATAD 70
Case
[2023] NSWCATAD 70
Decision Date

CaseChat Overview and Summary

Berryman brought proceedings in the Land and Environment Court of New South Wales against the Murray River Council, seeking access to a report prepared by Centium. The report was prepared for the Council in relation to the assessment of the potential environmental impact of a proposed development. The Council refused to provide the report to Berryman, citing the public interest in withholding the report and the protection of commercial interests under the Copyright Act 1968 (Cth). Berryman sought a review of the Council’s decision under the Government Information (Public Access) Act 2009 (NSW), arguing that the Council’s refusal was not in the public interest and that any exceptions under the Copyright Act did not apply.

The court had to determine whether the Council’s decision was in the public interest under the Government Information (Public Access) Act and whether any exceptions under the Copyright Act applied. The court found that the Council’s submissions in support of its decision were not adequately supported by evidence and that the Council had not properly balanced the public interest factors. The court also found that the form of access Berryman sought, namely view-only access, did not infringe upon the Council’s commercial interests and that the public interest in access to the report outweighed any potential prejudice to the Council.

The court set aside the Council’s decision and ordered that the Council provide Berryman with view-only access to the Centium report. The court held that the public interest in transparency and access to government information outweighed the Council’s concerns about commercial interests and that the form of access sought did not infringe upon any copyright protections. The court also found that the Council had not adequately balanced the public interest factors and had failed to provide sufficient evidence in support of its decision. The court’s decision reinforces the importance of transparency and public access to government information, while also recognising the need to balance competing interests such as commercial confidentiality.

Orders

Orders of the court

The respondent’s decision dated 2 December 2022 is set aside and the following decision is made in substitution:

1. The Respondent is to provide the applicant with view-only access to the Centium report pursuant to s 72(1)(a) of the Government Information (Public Access) Act 2009 (NSW).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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