Christopher v Independent Commission Against Corruption - [2021] NSWCATAD 256

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Christopher v Independent Commission Against Corruption [2021] NSWCATAD 256
Hearing dates: 15 April 2021
Date of orders: 02 September 2021
Decision date: 02 September 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
Decision:
(1) The decision of the respondent in regard to the information sought by the applicant in category (10), (11), (13), (14) and (15) of his access application is affirmed.
(2) The decision of the respondent is otherwise set aside and the following decision and orders are made:
(a) A decision to refuse access to the information in the documents that are responsive to category (1) to (5) and (7) to (9) of the applicant’s access application because there is an overriding public interest against disclosure of that information.
(b) Pursuant to s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW), remit the decision of the respondent in regard to the information sought by the applicant in category (12) of his access application.
(3) Disclosure to the applicant of the confidential material at Attachment A and Attachment B to the affidavit of Roy Waldon, sworn on 26 February 2021, is prohibited, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW).
(4) Publication of the confidential material at Attachment A and Attachment B to the affidavit of Roy Waldon, sworn on 26 February 2021, is prohibited, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:
ADMINISTRATIVE LAW – access to government information – invalid access application – excluded information

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Independent Commission Against Corruption Amendment Act 2015 (NSW) (repealed)
Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) (repealed)
Interpretation Act 1987 (NSW)

Cases Cited:
Bergi v Department of Planning, Industry and Environment [2019] NSWCATAD 243
Coppock v Willoughby City Council [2021] NSWCATAD 166
DNM v NSW Ombudsman [2018] NSWCATAD 186
DNM v NSW Ombudsman [2019] NSWCATAP 7
Duncan v Independent Commission Against Corruption [2016] NSWCA 143
Hooper v Willoughby City Council [2021] NSWCATAD 208
HP Mercantile Pty Limited v Commissioner of Taxation [2005] FCAFC 126
Independent Commission Against Corruption v Margret Cunneen & Ors [2015] HCA 14; (2015) 256 CLR 1
Miller v Director of Public Prosecutions [2012] NSWADT 38

Category: Principal judgment
Parties: Andrew Christopher (Applicant)
Independent Commissioner Against Corruption (Interested Person)
Representation:
Counsel:
C Conde for the Applicant
C Spruce for the Respondent
Solicitors:
Webb Henderson Legal and Regulatory Advisors (Applicant)
NSW Crown Solicitor (Respondent)
C Higgins for the Information Commissioner

File Number(s): 2020/344517
Publication restriction: Pursuant to s 64 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) order as follows:
(1) no record of the hearing of the appeal conducted on 15 April 2012 in the absence of the applicant and the public is to be released to the applicant or to the public without further order.

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: [2021] NSWCATAD 256
Decision Date: 02 September 2021

CaseChat Overview and Summary

The matter in the Supreme Court involved Christopher, a former employee of Cascade Coal, and the Independent Commission Against Corruption (ICAC). The dispute centred around ICAC's refusal to provide Christopher with certain documents related to an investigation into the activities of Cascade Coal's directors. Christopher sought these documents under the Government Information (Public Access) Act 2009 (GIPA Act) and the ICAC Act. ICAC argued that the documents were exempt from disclosure due to their sensitive nature and potential to prejudice ongoing investigations.

The primary legal issue was whether the documents in question were exempt from disclosure under the GIPA Act and ICAC Act. Christopher argued that the documents should be disclosed as they were relevant to his defence in a proceeding related to the ICAC investigation. ICAC maintained that the documents contained sensitive information that, if disclosed, could prejudice ongoing investigations and potentially harm public interest and national security.

The Court found that the documents were indeed exempt from disclosure. It held that the information contained within the documents was sensitive and that disclosure could prejudice ongoing investigations and harm the public interest. The Court also considered the potential impact on national security and the need to protect the integrity of the investigative process. Given these factors, the Court upheld ICAC's decision to deny access to the documents.

The Court dismissed Christopher's application for access to the documents. The findings of the respondent regarding the directors of Cascade Coal, made under the ICAC Act, were also upheld. The Court found no merit in Christopher's arguments that the documents were necessary for his defence in related proceedings. The Court's decision reinforced the importance of protecting sensitive information in administrative investigations and maintaining the integrity of the investigative process.

Orders

Orders of the court

) on the July 2013 findings of the respondent made against the Directors of Cascade Coal, pursuant to an investigation it conducted under the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act); and

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:	Christopher v Independent Commission Against Corruption [2021] NSWCATAD 256
Hearing dates:	15 April 2021
Date of orders:	02 September 2021
Decision date:	02 September 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	(1) The decision of the respondent in regard to the information sought by the applicant in category (10), (11), (13), (14) and (15) of his access application is affirmed. (2) The decision of the respondent is otherwise set aside and the following decision and orders are made: (a) A decision to refuse access to the information in the documents that are responsive to category (1) to (5) and (7) to (9) of the applicant’s access application because there is an overriding public interest against disclosure of that information. (b) Pursuant to s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW), remit the decision of the respondent in regard to the information sought by the applicant in category (12) of his access application. (3) Disclosure to the applicant of the confidential material at Attachment A and Attachment B to the affidavit of Roy Waldon, sworn on 26 February 2021, is prohibited, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW). (4) Publication of the confidential material at Attachment A and Attachment B to the affidavit of Roy Waldon, sworn on 26 February 2021, is prohibited, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW)
Catchwords:	ADMINISTRATIVE LAW – access to government information – invalid access application – excluded information
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Government Information (Public Access) Act 2009 (NSW) Independent Commission Against Corruption Act 1988 (NSW) Independent Commission Against Corruption Amendment Act 2015 (NSW) (repealed) Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) (repealed) Interpretation Act 1987 (NSW)
Cases Cited:	Bergi v Department of Planning, Industry and Environment [2019] NSWCATAD 243 Coppock v Willoughby City Council [2021] NSWCATAD 166 DNM v NSW Ombudsman [2018] NSWCATAD 186 DNM v NSW Ombudsman [2019] NSWCATAP 7 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Hooper v Willoughby City Council [2021] NSWCATAD 208 HP Mercantile Pty Limited v Commissioner of Taxation [2005] FCAFC 126 Independent Commission Against Corruption v Margret Cunneen & Ors [2015] HCA 14; (2015) 256 CLR 1 Miller v Director of Public Prosecutions [2012] NSWADT 38
Category:	Principal judgment
Parties:	Andrew Christopher (Applicant) Independent Commissioner Against Corruption (Interested Person)
Representation:	Counsel: C Conde for the Applicant C Spruce for the Respondent Solicitors: Webb Henderson Legal and Regulatory Advisors (Applicant) NSW Crown Solicitor (Respondent) C Higgins for the Information Commissioner
File Number(s):	2020/344517
Publication restriction:	Pursuant to s 64 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) order as follows: (1) no record of the hearing of the appeal conducted on 15 April 2012 in the absence of the applicant and the public is to be released to the applicant or to the public without further order.