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
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
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These proceedings concern a request that Richard William Buttrose (the applicant) made to the NSW Trustee…
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- Case
- [2023] NSWCATAD 165
- Decision Date
CaseChat Overview and Summary
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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