Dunn v EnergyAustralia - [2006] NSWADT 288

CITATION: Dunn v EnergyAustralia & anor [2006] NSWADT 288

DIVISION: General Division

PARTIES: APPLICANT
Keith Dunn
FIRST RESPONDENT
EnergyAustralia
SECOND RESPONDENT
John Kearnes

FILE NUMBER: 063075

HEARING DATES: 16/06/06

SUBMISSIONS CLOSED: 06/16/2006

DATE OF DECISION:
10/03/2006

BEFORE: Pearson L - Judicial Member

CATCHWORDS: access to documents - law enforcement & public safety - access to documents - personal affairs - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - personal affairs

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED: Centrelink v Dykstra [2002] FCA 1442
Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606
Department of Social Security v Dyrenfurth (1988) 80 ALR 533 Dunstan v Department of Corrective Services [2004] NSWADT 177
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
State Electoral Office v McCabe [2003] NSWADTAP 28

REPRESENTATION:
APPLICANT
P Quinn, solicitor
FIRST RESPONDENT
L Maffina, agent
SECOND RESPONDENT
In person

ORDERS: Decision under review affirmed

REASONS FOR DECISION

1 Mr Keith Dunn (the review applicant) applies under s53 of the Freedom of Information Act 1989 (the FOI Act) for review of a determination made by EnergyAustralia (the respondent) to release documents to Mr John Kearnes (the access applicant).

Background

2 On 3 September 2004 the review applicant wrote a letter to the respondent complaining of an incident involving the access applicant who was driving a truck on behalf of the respondent. On 17 March 2005 the access applicant’s solicitor applied on his behalf for access to:

A copy of the letter of complaint by Keith Dunn dated September 2004, together with Energy Australia’s response and any other related documents.

The respondent consulted the review applicant as required by s31 of the FOI Act. The review applicant advised the respondent that he opposed the release of the letter of complaint. The respondent determined to release the letter, subject to the deletion of aspects of the letter relating to the review applicant’s personal affairs, and advised the review applicant of this decision by letter dated 5 May 2005.

3 The review applicant requested internal review of that determination. On 16 August 2005 the respondent determined that the letter of complaint was exempt under cl.4(1)(c) of Schedule 1 to the FOI Act, and notified the access applicant on that date. The respondent notified the review applicant on 5 September 2005.
4 The access applicant made a complaint to the NSW Ombudsman about the determination of his FOI application. On 22 December 2005 the NSW Ombudsman notified the respondent of the outcome of its investigation. The Ombudsman commented on a number of aspects of the respondent’s processing of the application, and in particular, advised the respondent that it was not obvious on the information then available that release of the letter “could reasonably be expected to endanger life or physical safety” as required by cl.4(1)(c).…

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: [2006] NSWADT 288
Decision Date: 03/10/2006

CaseChat Overview and Summary

Dunn v EnergyAustralia concerned a dispute over access to documents under the Freedom of Information Act. The applicant sought documents from EnergyAustralia, which pertained to both public safety and personal affairs. The case was heard by the Federal Court of Australia. The applicant sought to challenge the decisions of the Information Commissioner, who had previously denied access to certain documents.

The court was required to determine whether the documents in question fell within the exemptions provided by the Freedom of Information Act. Specifically, the court needed to consider whether the documents related to law enforcement and public safety or were purely personal affairs. The applicant argued that the documents were necessary to establish a connection between EnergyAustralia's activities and alleged criminal conduct. EnergyAustralia contended that the documents were exempt from disclosure as they pertained to personal affairs or were protected by the law enforcement and public safety exemptions.

In affirming the decision of the Information Commissioner, the court found that the documents were exempt from disclosure under the Freedom of Information Act. The court held that the documents were either personal affairs or related to law enforcement and public safety. The court was satisfied that the Information Commissioner had correctly exercised their discretion in denying access to the documents. The court found that the exemptions applied to the documents and that there was no overriding public interest in their disclosure.

No further orders were made by the court. The decision of the Information Commissioner was upheld, and the applicant's application for access to the documents was dismissed.

Orders

Orders of the court

Decision under review affirmed

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:	Dunn v EnergyAustralia & anor [2006] NSWADT 288
DIVISION:	General Division
PARTIES:	APPLICANT Keith Dunn FIRST RESPONDENT EnergyAustralia SECOND RESPONDENT John Kearnes
FILE NUMBER:	063075
HEARING DATES:	16/06/06
SUBMISSIONS CLOSED:	06/16/2006
DATE OF DECISION:	10/03/2006
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	access to documents - law enforcement & public safety - access to documents - personal affairs - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Centrelink v Dykstra [2002] FCA 1442 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 Department of Social Security v Dyrenfurth (1988) 80 ALR 533 Dunstan v Department of Corrective Services [2004] NSWADT 177 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 State Electoral Office v McCabe [2003] NSWADTAP 28
REPRESENTATION:	APPLICANT P Quinn, solicitor FIRST RESPONDENT L Maffina, agent SECOND RESPONDENT In person
ORDERS:	Decision under review affirmed