Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Else v Transport for NSW [2021] NSWCATAD 59 Hearing dates: 13 November 2020 and written submissions by 24 December 2020. Date of orders: 12 March 2021 Decision date: 12 March 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: M Wall, Senior Member Decision: (1) The decision of NSW Treasury dated 22 November 2019 is varied to the following effect:
(a) Items [5], [14] and [35] be released to the Applicant within 28 days of the publication of these reasons.
(b) Items [3], [7] and [12] be remitted to the agency for reconsideration.
(c) items [9], [10] and [16] be remitted to the agency for reconsideration and redaction in accordance with these reasons.
(d) the decision of Transport NSW is otherwise affirmed.
(2) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure of:
(a) the material filed by the respondent on a confidential basis,
(b) those paragraphs of these reasons identified as [NOT FOR PUBLICATION],
(c) the submissions made in private before the Tribunal, and
(d) the record of that part of the proceedings conducted in private pursuant to s 49 of the Civil and Administrative Tribunal Act 2013,
is prohibited. That material is not to be released to the applicant or the public.
Catchwords: ADMINISTRATIVE REVIEW. Government Information (Public Access) – public interest considerations in favour of disclosure – public interest considerations against disclosure – whether endanger or prejudice any system or procedure for protecting the safety of any person - whether facilitate the commission of a criminal offence – whether prejudice the effective exercise of an agency’s functions - clauses 1(f), 2(d) and 2(f) of the table in s14.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Transport Administration Act 1998 (NSW)
Cases Cited: Veall v Department of Planning and Environment [2018] NSWCATAD 47
MI skelly v Secretary, Department of Education [2019] NSWCATAD 48
Leech v Sydney Water Corporation [2010] NSWADT 198
Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120
Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46
Attorney General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190
Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18
Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254
Meacham v Commissioner of Police [2020] NSWCATAP 107
Electoral Commissioner, State Electoral Office v McCabe [2003] NSWADTAP 28
Griffin v Sydney Trains [2020] NSWCATAD 234
Hutchinson v Roads and Traffic Authority [2006] NSWADT 147
Wordsworth v Roads and Maritime Services [2017] NSWCATAD 201
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28
Department of Agriculture and Rural Affairs v Binnie [1989] V.R. 836
Destination NSW V Taylor [2019] NSWCATAP 123.
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- AGLC
- Else v Transport for NSW [2021] NSWCATAD 59
- Case
- [2021] NSWCATAD 59
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the public interest considerations in favour of disclosure outweighed the public interest considerations against disclosure, specifically under clauses 1(f), 2(d) and 2(f) of the table in section 14 of the GIPA Act. The court had to consider whether the disclosure of the documents would endanger or prejudice any system or procedure for protecting the safety of any person, facilitate the commission of a criminal offence, or prejudice the effective exercise of an agency’s functions.
The court found that the public interest considerations in favour of disclosure outweighed the public interest considerations against disclosure, with the exception of certain items. The court varied the decision of the NSW Treasury, ordering that certain documents be released to the applicant within 28 days of the publication of these reasons, while other documents be remitted to the agency for reconsideration and redaction in accordance with these reasons. The court also affirmed the decision of Transport NSW with respect to the remaining documents. The court further ordered that certain material filed by the respondent on a confidential basis, certain paragraphs of these reasons, the submissions made in private before the Tribunal, and the record of that part of the proceedings conducted in private, be prohibited from disclosure to the applicant or the public.
Orders
Orders of the court
(1) The decision of NSW Treasury dated 22 November 2019 is varied to the following effect:
(a) Items [5], [14] and [35] be released to the Applicant within 28 days of the publication of these reasons.
(b) Items [3], [7] and [12] be remitted to the agency for reconsideration.
(c) items [9], [10] and [16] be remitted to the agency for reconsideration and redaction in accordance with these reasons.
(d) the decision of Transport NSW is otherwise affirmed.
(2) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure of:
(a) the material filed by the respondent on a confidential basis,
(b) those paragraphs of these reasons identified as [NOT FOR PUBLICATION],
(c) the submissions made in private before the Tribunal, and
(d) the record of that part of the proceedings conducted in private pursuant to s 49 of the Civil and Administrative Tribunal Act 2013,
is prohibited. That material is not to be released to the applicant or the public.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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