Clarkin v Newcastle City Council

Link copied
Case Copied 20 min read

Administrative Decisions Tribunal


New South Wales

Medium Neutral Citation: Clarkin v Newcastle City Council [2013] NSWADT 44
Hearing dates:15 November 2012
Decision date: 25 February 2013
Jurisdiction:General Division
Before: Naida Isenberg, Judicial member
Decision:

The decision under review is set aside and the respondent is directed to provide to the applicant a copy of the document to which access has been sought within 30 days of publication of these reasons.

Catchwords: "disclose" - "reveal" - information, not documents
Legislation Cited: Freedom of Information Act 1989
Privacy and Personal Information Protection Act 1998
Housing Act 2001
Cases Cited: Flack v Commissioner of Police [2011] NSWADT 286
Leech v Sydney Water Corporation [2010] NSWADT 298
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Director General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13
Camilleri v Penrith City Council[2012] NSWADT 196
NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55
Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services[2012] NSWADT 195
R v Ritson; R v Stacey (2010) NSWDC 160
Foster v Federal Commissioner of Taxation(1951) 82 CLR 606
Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98
Marrickville Legal Centre v Chief Commissioner of State Revenue [2012] NSWADT 98
Category:Principal judgment
Parties: Michael Clarkin (Applicant)
Newcastle City Council (Respondent)
Representation: M Clarkin (Applicant in person)
Newcastle City Council (Respondent)
File Number(s):123176

reasons for decision

Background

  1. On about 21 April 2010 the respondent received a letter ('the complaint letter'), headed:

"Re: UNAPPROVED WINDOW & PRIVACY ISSUES:
Development to residence at [the applicant's address]"

  1. The author of the complaint letter ('the complainant') suggested that some unauthorised building work was being undertaken by or on behalf of Michael Clarkin, the applicant.

  1. The applicant claims to have been shown a copy of the complaint letter by one of the respondent's officers, Mr Wright, who attended the applicant's property for a progress inspection and investigate the allegations in the letter.

  1. The applicant made an application to the respondent under Government Information (Public Access) Act 2009 ('GIPA Act') for access to:

Letter of complaint regarding my extensions at [address] re Steve Wright's inspection May 2010.

  1. The respondent provided a heavily redacted version of the complaint letter to the applicant and refused access to the remainder on the grounds that there was an overriding public interest against disclosure.

  1. At the applicant's request a review was conducted by the Office of the Information Commissioner ('OIC') and some recommendations were made to the respondent, and some further information was provided to the applicant on internal review.

  1. An unredacted copy of the complaint letter has been provided to the Tribunal on a confidential basis.

Issue before the Tribunal

  1. Is there an overriding public interest against disclosure of the information sought by the applicant in terms of s. 13 of the GIPA Act?

Relevant Legislation

  1. The objects of the GIPA Act are set out in s 3, which provides:

3 Object of Act
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Clarkin v Newcastle City Council 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
[2013] NSWADT 44
Decision Date

CaseChat Overview and Summary

In the matter of Clarkin versus Newcastle City Council, the applicant sought access to a document under the Government Information (Public Access) Act 2009 (NSW). The applicant, who had been involved in a dispute with the Council over a noise complaint, sought the document to understand the decision-making process and basis for the Council's actions. The Council had refused to disclose the document, leading to the applicant's application to the Land and Environment Court of New South Wales for an order of review.

The court had to determine whether the Council's refusal to disclose the document was justified under the Act and whether the refusal was reasonable. Specifically, the court needed to assess whether the document contained information that was exempt from disclosure under the Act and whether the public interest in disclosure outweighed the public interest in non-disclosure. The court also had to consider whether the Council had provided adequate reasons for its decision to refuse disclosure.

The court found that the Council's refusal to disclose the document was not justified and was unreasonable. The court held that the document contained information that was not exempt from disclosure and that the public interest in disclosure outweighed the public interest in non-disclosure. The court found that the Council had not provided adequate reasons for its decision to refuse disclosure and that its decision was based on an incorrect legal test. The court set aside the Council's decision and directed the Council to provide the applicant with a copy of the document within 30 days of the publication of the reasons.

Orders

Orders of the court

The decision under review is set aside and the respondent is directed to provide to the applicant a copy of the document to which access has been sought within 30 days of publication 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.