Charles v SafeWork NSW - [2023] NSWCATAD 259

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Charles v SafeWork NSW [2023] NSWCATAD 259
Hearing dates: 29 August 2023; 19 September 2023
Date of orders: 11 October 2023
Decision date: 11 October 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: D Ziegler, Senior Member
Decision:
The decision of the respondent to withhold part of line four and all of lines five to ten of the email dated 14 August 2013 is set aside and in substitution thereof a decision is made that the applicant be granted access to all of that information with the exception of:
(a) The first word of line five; and
(b) The words in line six after the words “Lee was” and before the words “I asked”.

Catchwords:
ADMINISTRATIVE LAW – administrative review - government information – confidential information – personal information – secrecy provision – effective exercise of agency’s functions - whether overriding public interest against disclosure

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Privacy and Personal Information Protection Act 2022 (NSW)
Work Health and Safety Act 2011 (NSW)

Cases Cited:
Battin v University of New England [2013] NSWADT 73
Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19
Fraser v SafeWork NSW [2020] NSWCATAP 92
Fraser v SafeWork NSW (No 2) [2021] NSWCATAD 79
Leech v Sydney Water Corporation [2010] NSWADT 298
Neary v State Rail Authority [1999] NSWADT 107
Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254
Searle Australia Pty Ltd v PIAC [1992] FCA 241
Veall v Department of Planning and Environment [2018] NSWCATAD 47
Walker v SafeWork NSW [2022] NSWCATAD 94

Category: Principal judgment
Parties: Lee Charles (Applicant)
SafeWork NSW (Respondent)
Representation: Solicitors:
Self-represented (Applicant)
Corporate Services, Department of Customer Service (Respondent)

File Number(s): 2023/00134149
Publication restriction: Nil

REASONS FOR DECISION

This is an application for administrative review of a decision of SafeWork NSW (SafeWork) concerning an application for access to information made by Ms Charles under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).
In her access application Ms Charles sought access to a one-page email dated 14 August 2013 and timestamped 12:01 pm which was sent by a manager employed by Ms Charles’ former employer Anglican Care. The email appears at page 22 of a report released to Ms Charles in response to a previous access application. The email was referred to by the parties in the proceedings as “Page 22”. For convenience, in this decision I will also refer to the email as “Page 22”.
The dispute concerns the decision of Safework to redact part of line four, and all of lines five to ten, of Page 22.
For the reasons that follow I have decided to set aside the decision of the respondent to withhold that information and in substitution thereof to order that the applicant be given access to part of the information in lines four to ten of Page 22.

Background

Ms…

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.

Continue reading Charles v SafeWork NSW

Details

AGLC: Charles v SafeWork NSW [2023] NSWCATAD 259
Case: [2023] NSWCATAD 259
Decision Date: 11 October 2023

CaseChat Overview and Summary

The applicant, Charles, sought access to certain documents held by SafeWork NSW under the Government Information (Public Access) Act 2009 (GIPA). Charles' request pertained to an email dated 14 August 2013, and SafeWork NSW had refused to release certain parts of the email citing secrecy provisions. The dispute was brought before the Land and Environment Court of New South Wales.

The primary legal issue the court had to address was whether the respondent's refusal to disclose certain parts of the email was justified under the secrecy provisions of GIPA. Specifically, the court needed to determine if the overriding public interest in secrecy outweighed the public interest in disclosure. The court also considered whether the applicant's right to access government information was contravened by withholding the information in question.

The court found that the respondent's refusal to disclose certain parts of the email was not justified. It determined that the public interest in disclosure outweighed the interest in secrecy. The court held that the information in question did not relate to the effective exercise of the agency's functions, nor did it involve confidential or personal information that warranted withholding. Consequently, the court set aside the decision to withhold parts of the email and ordered that the applicant be granted access to all but two specific parts of the information in question. These parts were the first word of line five and the words in line six after "Lee was" and before "I asked".

The court's final order was that the respondent's decision to withhold part of line four and all of lines five to ten of the email dated 14 August 2013 be set aside. In its place, the court ordered that Charles be granted access to all of that information except for the first word of line five and the words in line six after "Lee was" and before "I asked".

Orders

Orders of the court

The decision of the respondent to withhold part of line four and all of lines five to ten of the email dated 14 August 2013 is set aside and in substitution thereof a decision is made that the applicant be granted access to all of that information with the exception of:

(a) The first word of line five; and

(b) The words in line six after the words “Lee was” and before the words “I asked”.

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:	Charles v SafeWork NSW [2023] NSWCATAD 259
Hearing dates:	29 August 2023; 19 September 2023
Date of orders:	11 October 2023
Decision date:	11 October 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Ziegler, Senior Member
Decision:	The decision of the respondent to withhold part of line four and all of lines five to ten of the email dated 14 August 2013 is set aside and in substitution thereof a decision is made that the applicant be granted access to all of that information with the exception of: (a) The first word of line five; and (b) The words in line six after the words “Lee was” and before the words “I asked”.
Catchwords:	ADMINISTRATIVE LAW – administrative review - government information – confidential information – personal information – secrecy provision – effective exercise of agency’s functions - whether overriding public interest against disclosure
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Government Information (Public Access) Act 2009 (NSW) Privacy and Personal Information Protection Act 2022 (NSW) Work Health and Safety Act 2011 (NSW)
Cases Cited:	Battin v University of New England [2013] NSWADT 73 Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19 Fraser v SafeWork NSW [2020] NSWCATAP 92 Fraser v SafeWork NSW (No 2) [2021] NSWCATAD 79 Leech v Sydney Water Corporation [2010] NSWADT 298 Neary v State Rail Authority [1999] NSWADT 107 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Searle Australia Pty Ltd v PIAC [1992] FCA 241 Veall v Department of Planning and Environment [2018] NSWCATAD 47 Walker v SafeWork NSW [2022] NSWCATAD 94
Category:	Principal judgment
Parties:	Lee Charles (Applicant) SafeWork NSW (Respondent)
Representation:	Solicitors: Self-represented (Applicant) Corporate Services, Department of Customer Service (Respondent)
File Number(s):	2023/00134149
Publication restriction:	Nil