Brazel v Sydney Water (No 2) - [2021] NSWCATAD 370

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Brazel v Sydney Water (No 2) [2021] NSWCATAD 370
Hearing dates: On the Papers
Date of orders: 13 December 2021
Decision date: 13 December 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: K Ransome, Senior Member
Decision:
(1) A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.
(2) The decision made by Sydney Water on 12 August 2020 is varied to the extent set out in [99] of these reasons.
(3) The decision under review is otherwise affirmed.
(4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of the material filed with the Tribunal on a confidential basis is restricted to the respondent, the respondent’s legal representatives and the Tribunal.

Catchwords:
ADMINISTRATIVE LAW – administrative review - Government Information – identity of third parties who made objections to release of information – whether overriding public interest against disclosure – refusal to deal

Legislation Cited:
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009

Cases Cited:
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Bellamy v Bellamy [2018] NSWSC 534
Brazel v Sydney Water [2020] NSWCATAD 188
Brazel v Sydney Water Corporation [2021] NSWCATAP 13
Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61
Collins v Department of Finance, Service and Innovation (2018) NSWCATAD 60
Commissioner of Police v Danis [2017] NSWCATAP 7
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41
Leech v Sydney Water Corporation [2010] NSWADT 298
Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254
Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] AATA 1144
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Category: Principal judgment
Parties: Thomas Brazel (Applicant)
Sydney Water (Respondent)
Representation: Applicant in person
Respondent by its employed officer

File Number(s): 2020/00290033
Publication restriction: Nil

REASONS FOR DECISION

Thomas Brazel has had a long running dispute with a strata committee. A former member of the strata committee, Jeff Scott, who at the time was an employee of Sydney Water, used his work email account to communicate with others about the dispute. These emails sent by Mr Scott became information “held” by Sydney Water and therefore subject to the Government Information (Public Access) Act 2009 (GIPA Act).
In 2016 Mr Brazel made an access application to Sydney Water seeking access to the communications of Mr Scott relating to the strata dispute sent via his work email address (GIPA Application 9177). Mr Brazel made a further GIPA application in July 2017, GIPA Application 9255. Third party objections were received for both access applications. However, after balancing the…

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: [2021] NSWCATAD 370
Decision Date: 13 December 2021

CaseChat Overview and Summary

The case of Brazel v Sydney Water (No 2) involved an application for internal review of a decision by Sydney Water to refuse to disclose information under the Government Information (Public Access) Act 2009. The applicant sought access to documents relating to the discharge of wastewater into Sydney Harbour, and the identity of third parties who had made objections to the release of the information. The application was heard by the Civil and Administrative Tribunal of New South Wales.

The central legal issue was whether the public interest in disclosure of the information outweighed the public interest in maintaining the confidentiality of the identity of the objectors. The applicant argued that the public interest in transparency and accountability required the disclosure of the information, while Sydney Water contended that the release of the information would be contrary to the public interest because it could cause reputational harm to the objectors and potentially compromise their privacy and security.

The Tribunal found that the public interest in maintaining the confidentiality of the objectors’ identities was more compelling than the public interest in disclosure. The Tribunal held that the objectors had a legitimate expectation of privacy in their identities, and that the potential harm to them if their identities were disclosed outweighed the benefits of disclosure to the public. The Tribunal also noted that the information had already been subject to significant public scrutiny and that the applicant had not demonstrated any specific need for the additional information sought.

The Tribunal affirmed the decision of Sydney Water to refuse to disclose the information, but varied the decision to the extent that it ordered Sydney Water to provide the applicant with a redacted version of the documents that omitted the names and other identifying details of the objectors. The Tribunal also ordered that the material filed with the Tribunal on a confidential basis be restricted to certain parties.

Orders

Orders of the court

(1) A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.

(2) The decision made by Sydney Water on 12 August 2020 is varied to the extent set out in [99] of these reasons.

(3) The decision under review is otherwise affirmed.

(4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of the material filed with the Tribunal on a confidential basis is restricted to the respondent, the respondent’s legal representatives and the Tribunal.

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:	Brazel v Sydney Water (No 2) [2021] NSWCATAD 370
Hearing dates:	On the Papers
Date of orders:	13 December 2021
Decision date:	13 December 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	(1) A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013. (2) The decision made by Sydney Water on 12 August 2020 is varied to the extent set out in [99] of these reasons. (3) The decision under review is otherwise affirmed. (4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of the material filed with the Tribunal on a confidential basis is restricted to the respondent, the respondent’s legal representatives and the Tribunal.
Catchwords:	ADMINISTRATIVE LAW – administrative review - Government Information – identity of third parties who made objections to release of information – whether overriding public interest against disclosure – refusal to deal
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009
Cases Cited:	Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 Bellamy v Bellamy [2018] NSWSC 534 Brazel v Sydney Water [2020] NSWCATAD 188 Brazel v Sydney Water Corporation [2021] NSWCATAP 13 Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 Collins v Department of Finance, Service and Innovation (2018) NSWCATAD 60 Commissioner of Police v Danis [2017] NSWCATAP 7 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41 Leech v Sydney Water Corporation [2010] NSWADT 298 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] AATA 1144 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Category:	Principal judgment
Parties:	Thomas Brazel (Applicant) Sydney Water (Respondent)
Representation:	Applicant in person Respondent by its employed officer
File Number(s):	2020/00290033
Publication restriction:	Nil