Buttrose v NSW Trustee and Guardian

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Buttrose v NSW Trustee and Guardian [2023] NSWCATAD 165
Hearing dates: 15 May 2023
Date of orders: 26 June 2023
Decision date: 26 June 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:

The decision of the respondent dated 13 February 2022, as varied by its written submissions filed on 27 February 2023, is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – conclusive presumption that there is an overriding public interest against disclosure – whether the claim for privilege is invalid on the basis that the disputed information was prepared in the perpetration of a fraud.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995 (NSW)

Government Information (Public Access) Act 2009 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

State Records Act 1998 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

AWB Ltd v Cole (No 5) (2006) 155 FCR 30;

Adstead Pty Ltd (in liq) v Liddan Pty Ltd [1997] SASC 6727

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

Barnes v Addy (1874) 9 Ch 244;

Bridgewater v Leahy (1998) 194 CLR 457

Calverley v Green (1984) 155 CLR 242

Ex Parte Cox (1887) 20 QBD 1

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

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

Green v Green (1987) 17 NSWLR 343

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

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Jackson v University of New South Wales [2019] NSWCATAD 224

Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2011] FCA 671

Leech v Sydney Water Corporation [2010] NSWADT 298

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112

Mann v Carnell (1999) 201 CLR 1

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

Nelson v Nelson (1995) 184 CLR 538

Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357

Re Diplock [1951] AC 251

Re Southland Coal Pty Ltd (Receivers and Managers Appointed) (in liq) [2006] NSWSC 899

Strang v Owens [1925] 42 WN (NSW) 183

Taylor v Destination NSW [2017] NSWCATAD 272

Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq) (No 9) [2013] FCA 1350

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

Texts Cited:

None

Category:Principal judgment
Parties: Richard William Buttrose (Applicant)
NSW Trustee and Guardian (Respondent)
Representation: Solicitors:
Applicant (Self-represented)
Crown Solicitor (Respondent)
File Number(s): 2023/00005360
Publication restriction: Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent (NSW Trustee & Guardian), is prohibited.

Reasons for decision

Background

  1. These proceedings concern a request that Richard William Buttrose (the applicant) made to the NSW Trustee…

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Details
Case
[2023] NSWCATAD 165
Decision Date

CaseChat Overview and Summary

The case of Buttrose v NSW Trustee and Guardian involved the plaintiff seeking access to certain information held by the defendant under the Government Information (Public Access) Act 2009 (NSW). The plaintiff, Buttrose, sought disclosure of documents related to the defendant's decision-making processes, specifically those involving the appointment of guardians and trustees. The defendant, NSW Trustee and Guardian, refused to disclose the documents, relying on a conclusive presumption that there was an overriding public interest against disclosure. Buttrose sought judicial review of the decision, arguing that the claim for privilege was invalid because the information was prepared in the perpetration of a fraud.

The central legal issue before the court was whether the claim for privilege made by the defendant was valid, given that the information in question was allegedly prepared in the perpetration of a fraud. The court had to determine the scope and application of the conclusive presumption under the Act, and whether this presumption could be invalidated by the allegation that the information was prepared for fraudulent purposes. The court was also required to consider the principles of administrative law relevant to the review of decisions involving Government Information (Public Access).

In reaching its decision, the court examined the statutory framework and the nature of the conclusive presumption under the Act. The court held that the conclusive presumption was a robust mechanism designed to protect public interest considerations and that it was not open to the court to invalidate the presumption based on the allegation of fraud. The court found that the defendant's decision to refuse disclosure was consistent with the statutory requirements and that the conclusive presumption applied to the documents in question. The court affirmed the decision of the defendant, finding that the claim for privilege was valid and that the refusal to disclose the documents was justified.

Orders

Orders of the court

The decision of the respondent dated 13 February 2022, as varied by its written submissions filed on 27 February 2023, is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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