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Daycorp Pty Ltd v Parnell

Daycorp Pty Ltd v Parnell

Case [2011] SADC 191 12 December 2011

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Freedom of Information Act)
DAYCORP P/L & ORS v PARNELL & ANOR
[2011] SADC 191
Judgment of His Honour Judge Millsteed
12 December 2011
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION
Appeal against determination by Ombudsman that certain documents were not exempt under Schedule 1, Freedom of Information Act 1991 (SA) – whether Ombudsman’s reasons for determination were adequate – whether Ombudsman failed to consider all claims for exemption.
Held: reasons given in respect of some documents adequate and correct – reasons given in respect of “other documents” insufficient – in respect of “other documents” matter not remitted for further consideration by Ombudsman but determined by Court under s.42F District Court Act 1991 – appeal dismissed.
Freedom of Information Act 1991 ss20, 38, 39, 40; Development Act 1993 s24, referred to.
Re Saxon and Australian Maritime Authority (Cth AAT, 19 June 1995, unreported); Actors Equity Association of Australia (No 2) (1985) 7 ALD 584; AG v Cockcroft (1986) 64 ALR 97 (FC); Ipex Information Technology Group Pty Ltd v The Department of Information Technology Services South Australia (1997) 192 LSJS 54; Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; Re Burns and Australian National University (1984) 6 ALD 193; Harris v Australian Broadcasting Corporation (1983) 78 FLR 236; Tunchon v Commissioner of Police, New South Wales Public Service [2000] NSWADT 73; James v Australian National University (1984) 2 AR 327; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; Re Howard and Treasurer of the Commonwealth (1985) 3 AAR 169; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Papps v Police (2000) 77 SASR 210; R v Keyte [2000] 78 SASR 68; Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589; Bennett v Vice Chancellor, University of New South Wales [2000] NSWADT 8, considered.

DAYCORP P/L & ORS v PARNELL & ANOR
[2011] SADC 191
Introduction

This is an appeal pursuant to s40 of the Freedom of Information Act 1991 (SA) (the “FOIA”) by Daycorp Pty Ltd, Mt Barker Developments No 1 Pty Ltd Calomba Pty Ltd and Fairmont Group Pty Ltd (the consortium/appellants) against the determination of an external review by the Ombudsman in which the first respondent, the Hon. Mark Parnell MLC (“Mr Parnell”) was the applicant and, the second respondent, the Department of Planning and Local Government (DPLG), was the agency. On 24 June 2010 the Ombudsman reversed a decision by the agency that certain documents sought by Mr Parnell were exempt under Schedule 1 of the FOIA.
Background
At the time of the relevant events the appellants were a consortium of developers. In 2008 the Minister for Urban Development and Planning (the Minister) considered a proposal by the consortium to rezone rural land around Mount…

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 Daycorp Pty Ltd v Parnell

Details

AGLC: Daycorp Pty Ltd v Parnell [2011] SADC 191
Case: [2011] SADC 191
Decision Date: 12 December 2011

CaseChat Overview and Summary

Daycorp Pty Ltd, an applicant for documents under the Freedom of Information Act 1991 (SA), appealed against a determination by the Ombudsman that certain documents were not exempt from disclosure. The dispute centred on the adequacy of the Ombudsman’s reasons and whether all claims for exemption were properly considered. The appeal was heard in the South Australian District Court.

The primary legal issues involved the sufficiency and correctness of the Ombudsman’s reasons for determining that certain documents were not exempt from disclosure. Additionally, the court needed to determine whether the Ombudsman had considered all claims for exemption and whether the reasons provided were adequate to justify the determination. The court had to assess whether the Ombudsman’s process complied with the statutory requirements of the Freedom of Information Act and the District Court Act.

The court found that the reasons provided for some documents were adequate and correct, but the reasons given for other documents were insufficient. The court held that the matter regarding the “other documents” would not be remitted for further consideration by the Ombudsman but would be determined by the court under section 42F of the District Court Act 1991. Consequently, the appeal was dismissed, and the decision of the Ombudsman was upheld in part and quashed in part.

Orders