CBL v Sydney Water Corporation - [2016] NSWCATAD 287

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CBL v Sydney Water Corporation [2016] NSWCATAD 287
Hearing dates: 25 November 2016
Date of orders: 07 December 2016
Decision date: 07 December 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: Hennessy LCM, Deputy President
Decision:
1. Southern Cross University’s application to appear and be heard in the proceedings is granted.
2. Southern Cross University’s application to be joined as a party to the proceedings is refused.
3. The matter is listed for Case Conference on 16 December 2016 at 3:00pm.

Catchwords: JOINDER – application under the Government Information (Public Access) Act 2009 – third party objection to access to information being given – whether third party is a person who could be aggrieved by the Tribunal’s decision
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 44, 60 and 80, Sch 3 cl 9
Civil and Administrative Tribunal Rules 2014 (NSW), r 27
Government Information (Public Access) Act 2009, ss 54, 80 and 104
Cases Cited: AIN v Medical Council of New South Wales [2015] NSWCATAP 241
Commissioner of Police, NSW Police Force v Fine [2014] NSWCA 327
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Marrickville Council v Botany Council [2015] NSWCATAD 144.
Wentworth v New South Wales Bar Association (1992) 176 CLR 239
Category: Procedural and other rulings
Parties: CBL (Applicant)
Sydney Water Corporation (Respondent)
Representation: Applicant (self-represented)
S Spargo (Corporate Compliance Manager Sydney Water Corporation) (Respondent)
B Atkinson (University Lawyer Southern Cross University) (third party)

File Number(s): 1610436
Publication restriction: Nil

REASONS FOR DECISION

Overview

Southern Cross University has applied to “appear and be heard” in proceedings under the Government Information (Public Access) Act 2009 (GIPA Act). Those proceedings are between CBL and Sydney Water Corporation. The University is a third party who has objected to CBL being given access to certain information. Sydney Water has no objection to the University appearing. CBL objects.
In compliance with s 54 of the GIPA Act, Sydney Water consulted with the University before deciding whether to give CBL access to the information. On each occasion the University objected. Sydney Water did not give CBL access to the information. I am satisfied that the University “could be aggrieved by a decision” of the Tribunal on review: GIPA Act, s 104(3). They have a right to appear and be heard.
The University also applied to be joined as a party. The Tribunal may join a person as a party if it considers that the person should be joined: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 44. As the GIPA Act gives third parties a right to be heard, and the University did not make specific submissions as to why it should be given the status of a party, I refuse the University’s request to be joined as a party.

Background

This matter has a lengthy history beginning with CBL application to Sydney Water under the GIPA Act on 6 March 2013.…

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: [2016] NSWCATAD 287
Decision Date: 07 December 2016

CaseChat Overview and Summary

CBL sought access to information held by Sydney Water Corporation under the Government Information (Public Access) Act 2009 (GIPA). Southern Cross University objected to the release of the information, claiming it could be aggrieved by the outcome of the proceedings. The dispute came before the relevant authority to determine whether Southern Cross University could be joined as a party in the proceedings. The primary issue was whether Southern Cross University qualified as a person who could be aggrieved by the Tribunal's decision. This hinged on whether the university could demonstrate a sufficient interest in the information being released that would place it in a position of disadvantage if the information were disclosed.

The authority considered the criteria for joinder under GIPA and the nature of the information in question. It examined whether Southern Cross University had a direct and tangible interest in the information that would be affected by the decision. The authority found that while Southern Cross University had an interest in the general principles of transparency and access to information, it did not have a specific interest in the information requested by CBL that would make it aggrieved by the decision. The university's interest was deemed to be more general and not sufficiently direct or tangible to meet the criteria for joinder.

Consequently, the authority granted Southern Cross University's application to appear and be heard, allowing it to present its views on the matter. However, it refused the application to join as a party, determining that the university did not qualify as a person who could be aggrieved by the Tribunal's decision. The matter was then scheduled for a Case Conference to further discuss the proceedings related to the access to information request.

Orders

Orders of the court

1. Southern Cross University’s application to appear and be heard in the proceedings is granted.

2. Southern Cross University’s application to be joined as a party to the proceedings is refused.

3. The matter is listed for Case Conference on 16 December 2016 at 3:00pm.

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:	CBL v Sydney Water Corporation [2016] NSWCATAD 287
Hearing dates:	25 November 2016
Date of orders:	07 December 2016
Decision date:	07 December 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. Southern Cross University’s application to appear and be heard in the proceedings is granted. 2. Southern Cross University’s application to be joined as a party to the proceedings is refused. 3. The matter is listed for Case Conference on 16 December 2016 at 3:00pm.
Catchwords:	JOINDER – application under the Government Information (Public Access) Act 2009 – third party objection to access to information being given – whether third party is a person who could be aggrieved by the Tribunal’s decision
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 44, 60 and 80, Sch 3 cl 9 Civil and Administrative Tribunal Rules 2014 (NSW), r 27 Government Information (Public Access) Act 2009, ss 54, 80 and 104
Cases Cited:	AIN v Medical Council of New South Wales [2015] NSWCATAP 241 Commissioner of Police, NSW Police Force v Fine [2014] NSWCA 327 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Marrickville Council v Botany Council [2015] NSWCATAD 144. Wentworth v New South Wales Bar Association (1992) 176 CLR 239
Category:	Procedural and other rulings
Parties:	CBL (Applicant) Sydney Water Corporation (Respondent)
Representation:	Applicant (self-represented) S Spargo (Corporate Compliance Manager Sydney Water Corporation) (Respondent) B Atkinson (University Lawyer Southern Cross University) (third party)
File Number(s):	1610436
Publication restriction:	Nil