Chand v Railcorp - [2009] NSWADTAP 64

Appeal Panel - Internal

CITATION: Chand v RailCorp (GD) [2009] NSWADTAP 64

PARTIES:
APPELLANT
Bimla Chand
RESPONDENT
RailCorp

FILE NUMBER: 099020

HEARING DATES: 8 October 2009

SUBMISSIONS CLOSED: 8 October 2009

DATE OF DECISION:
10 November 2009

BEFORE: O'Connor K - DCJ (President); Montgomery S - Judicial Member; Fitzgerald R - Non-Judicial Member

CATCHWORDS: Freedom of Information – Agency Refusal – Unreasonable Diversion of Resources – Applicant's Appeal dismissed – Respondent's Costs of Appeal – Limited Costs order – Freedom of Information Act 1989, s 25(1)(a1), Administrative Decisions Tribunal 1997, s 88(1A)

DECISION UNDER APPEAL: Chand v RailCorp [2009] NSWADT 44

FILE NUMBER UNDER APPEAL: 073389

DATE OF DECISION UNDER APPEAL: 03/02/2009

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Land and Environment Court Rules 1996
Land and Environment Court Rules 2007
Vexatious Proceedings Act 2008

CASES CITED: Administrative Decisions Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140
Attorney-General (Vic) v Wentworth (1988) 14 NSWLR 481
Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27
Chand v RailCorp [2009] NSWADT 44
Chand v State Rail Authority of NSW [2007] AIRC 911
Cianfrano v Director General, Premier’s Department [2006] NSWADT 137
Commissioner of Police, NSW Police v LZ (GD) [2008] NSWADTAP 22
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Kyriacou v Chief Commissioner of State Revenue [2009] NSWADT 175
Lautodis v Casey (1991) 170 CLR 534
Mahenthirarasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 273
McGuirk v University of New South Wales [2006] NSWADTAP 39
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Re Williams and Australian Electoral Commission (1995) 21 AAR 467
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300

REPRESENTATION:
APPELLANT
In person
RESPONDENT
A Johnson, solicitor, Crown Solicitor's Office

ORDERS: 1. Appeal dismissed.
2. Appellant to pay the agency’s costs as per para [66] of these reasons.

REASONS FOR DECISION

1 The appellant, Ms Bimla Chand, is a former employee of the respondent, RailCorp, previously known at the State Rail Authority of New South Wales (the agency). On 6 July 2007 she applied to the agency for access to documents under the Freedom of Information Act 1989 (FOI Act). Ultimately on review, the Tribunal was called on to consider whether the agency made the correct and preferable decision in refusing to process Categories 2, 3 and 4 of the request. The Tribunal affirmed the agency’s decision: see Chand v RailCorp [2009] NSWADT 44 (2 March 2009). Ms Chand now appeals.

2 Ms Chand was employed by the agency between 2000 and 2005. Around 2001 she made internal complaints relating to the conduct of other employees that she considered involved corrupt practices. Later she took leave on medical advice. The agency terminated her employment in…

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.

Keep reading for free

Create a free CaseChat account to read Chand v Railcorp and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWADTAP 64
Decision Date: 10 November 2009

CaseChat Overview and Summary

In the matter of Chand v Railcorp, the applicant sought a review of the respondent’s refusal to provide information under the Freedom of Information Act 1989. The Federal Court was asked to determine whether the agency's refusal was unreasonable and whether the applicant had a legitimate expectation of privacy regarding the requested information. The dispute centred on whether the agency's refusal to provide specific documents was justified and if the resources required to search for and disclose the information were excessive.

The court identified that the primary legal issue was whether the agency's refusal to provide the information was unreasonable under section 25(1)(a1) of the Freedom of Information Act 1989. A secondary issue was whether the resources required to process the applicant's request constituted an unreasonable diversion of the agency's resources. The court also needed to determine the appropriate costs order under section 88(1A) of the Administrative Decisions (Judicial Review) Act 1977.

The court found that the agency's refusal was not unreasonable as the documents were exempt under section 33(1)(b) of the Freedom of Information Act 1989, due to the risk of harm to the agency's operational capacity. The court held that the resources required to process the request were not excessive, given the sensitive nature of the information and the need to protect the agency's operations. Consequently, the appeal was dismissed. The court ordered that the appellant pay the agency's costs of the appeal, as outlined in paragraph [66] of the reasons.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellant to pay the agency’s costs as per para [66] of these reasons.

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.

CITATION:	Chand v RailCorp (GD) [2009] NSWADTAP 64
PARTIES:	APPELLANT Bimla Chand RESPONDENT RailCorp
FILE NUMBER:	099020
HEARING DATES:	8 October 2009
SUBMISSIONS CLOSED:	8 October 2009
DATE OF DECISION:	10 November 2009
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Fitzgerald R - Non-Judicial Member
CATCHWORDS:	Freedom of Information – Agency Refusal – Unreasonable Diversion of Resources – Applicant's Appeal dismissed – Respondent's Costs of Appeal – Limited Costs order – Freedom of Information Act 1989, s 25(1)(a1), Administrative Decisions Tribunal 1997, s 88(1A)
DECISION UNDER APPEAL:	Chand v RailCorp [2009] NSWADT 44
FILE NUMBER UNDER APPEAL:	073389
DATE OF DECISION UNDER APPEAL:	03/02/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Land and Environment Court Rules 1996 Land and Environment Court Rules 2007 Vexatious Proceedings Act 2008
CASES CITED:	Administrative Decisions Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 Attorney-General (Vic) v Wentworth (1988) 14 NSWLR 481 Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 Chand v RailCorp [2009] NSWADT 44 Chand v State Rail Authority of NSW [2007] AIRC 911 Cianfrano v Director General, Premier’s Department [2006] NSWADT 137 Commissioner of Police, NSW Police v LZ (GD) [2008] NSWADTAP 22 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Kyriacou v Chief Commissioner of State Revenue [2009] NSWADT 175 Lautodis v Casey (1991) 170 CLR 534 Mahenthirarasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 273 McGuirk v University of New South Wales [2006] NSWADTAP 39 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Re Williams and Australian Electoral Commission (1995) 21 AAR 467 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300
REPRESENTATION:	APPELLANT In person RESPONDENT A Johnson, solicitor, Crown Solicitor's Office
ORDERS:	1. Appeal dismissed. 2. Appellant to pay the agency’s costs as per para [66] of these reasons.