EMQ v Cumberland City Council - [2022] NSWCATAD 133

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EMQ v Cumberland City Council [2022] NSWCATAD 133
Hearing dates: 22 April 2022
Date of orders: 27 April 2022
Decision date: 27 April 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: P French, Senior Member
Decision:
(1) The respondent’s General Application filed on 29 October 2021 is adjourned to a date to be fixed by the Registrar after the determination of Appeal proceeding 2022/88146 FHG v Cumberland Council.
(2) The respondent’s objection to the production of documents under the Summons based on s 159(1) of the Children’s Guardian Act 2019 is dismissed.
(3) The parties have liberty to apply for further orders.

Catchwords:
PROCEDURE – summons to produce documents – objections to production of particular documents – whether the agency is prevented from producing documents subject to the Summons by s 159(1) of the Children’s Guardian Act 2009

Legislation Cited:
Administrative Decisions Review Act 1997
Children’s Guardian Act 2009
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009
Local Government Act 1993
Privacy and Personal Information Protection Act 1998

Cases Cited:
Decision Restricted [2021] NSWCATAP 288
EMQ v Cumberland City Council [2021] NSWCATAD 162
FHG v Cumberland City Council [2021] NSWCATAD 379
Hearne v Street (2008) 235 CLR 125

Category: Procedural rulings
Parties: EMQ (Applicant)
Cumberland City Council (Respondent)
Representation:
Counsel:
L Sims (Respondent)
Solicitor:
EMQ, self-represented
General Counsel, Cumberland City Council (Respondent)

File Number(s): 2020/00355032
Publication restriction: (1) The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. The applicant is to be known by the pseudonym “EMQ”.

REASONS FOR DECISION

The background to the application that is before me for determination today is set out in EMQ v Cumberland Council [2022] NSWCATAD 51. It is sufficient for present purposes to note that the substantive application in this proceeding is an application under section 55 of the Administrative Decisions Review Act 1997 for an administrative review under section 55(1) of the Privacy and Personal Information Protection Act 1998 (PPIP Act) of alleged conduct by Cumberland City Council (the agency) that was in contravention of information protection principles contained in Part 2, Division 1 of the PPIP Act following an internal review of that conduct by the agency. I am dealing with an interlocutory application made by the agency on 29 October 2021 for orders that it is exempt from producing 10 documents within the scope of Order 1 of the Orders of the Appeal Panel in Decision Restricted [2021] NSWCATAP 288 which arise from a Summons to produce documents issued by the applicant on the agency on 25 March 2021.
There are also currently proceedings between the parties concerning an application made by the applicant under the Government Information (Public Access) Act 2009 (GIPA Act). A first instance decision in those proceedings (FHG v Cumberland City Council [2021] NSWCATAD 379) is the subject…

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: [2022] NSWCATAD 133
Decision Date: 27 April 2022

CaseChat Overview and Summary

EMQ sought an order from the court compelling Cumberland City Council to produce specific documents under a summons. The Council objected to producing some of the documents, citing s 159(1) of the Children’s Guardian Act 2009, which restricts the disclosure of certain information. The Council argued that the section prevented them from complying with the summons. The court needed to determine whether the Council was legally barred from producing the requested documents under the cited section of the Act.

The court examined the language and intent of s 159(1) and found that it did not categorically prohibit the production of the documents in question. The court considered the broader legislative context and concluded that the section's restrictions were not applicable in the circumstances of this case. The Council's interpretation of the section as an absolute bar was deemed too narrow. Therefore, the court found that the Council was not precluded from producing the documents under s 159(1).

The court dismissed the Council's objection to the production of documents based on s 159(1) of the Children’s Guardian Act 2009. The General Application filed by the Council was adjourned pending the outcome of a related appeal. The court allowed the parties to apply for further orders if necessary. This decision clarified that s 159(1) did not act as an absolute prohibition on document production in this context, enabling the summons to proceed as ordered.

Orders

Orders of the court

(1) The respondent’s General Application filed on 29 October 2021 is adjourned to a date to be fixed by the Registrar after the determination of Appeal proceeding 2022/88146 FHG v Cumberland Council.

(2) The respondent’s objection to the production of documents under the Summons based on s 159(1) of the Children’s Guardian Act 2019 is dismissed.

(3) The parties have liberty to apply for further orders.

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:	EMQ v Cumberland City Council [2022] NSWCATAD 133
Hearing dates:	22 April 2022
Date of orders:	27 April 2022
Decision date:	27 April 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P French, Senior Member
Decision:	(1) The respondent’s General Application filed on 29 October 2021 is adjourned to a date to be fixed by the Registrar after the determination of Appeal proceeding 2022/88146 FHG v Cumberland Council. (2) The respondent’s objection to the production of documents under the Summons based on s 159(1) of the Children’s Guardian Act 2019 is dismissed. (3) The parties have liberty to apply for further orders.
Catchwords:	PROCEDURE – summons to produce documents – objections to production of particular documents – whether the agency is prevented from producing documents subject to the Summons by s 159(1) of the Children’s Guardian Act 2009
Legislation Cited:	Administrative Decisions Review Act 1997 Children’s Guardian Act 2009 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Local Government Act 1993 Privacy and Personal Information Protection Act 1998
Cases Cited:	Decision Restricted [2021] NSWCATAP 288 EMQ v Cumberland City Council [2021] NSWCATAD 162 FHG v Cumberland City Council [2021] NSWCATAD 379 Hearne v Street (2008) 235 CLR 125
Category:	Procedural rulings
Parties:	EMQ (Applicant) Cumberland City Council (Respondent)
Representation:	Counsel: L Sims (Respondent) Solicitor: EMQ, self-represented General Counsel, Cumberland City Council (Respondent)
File Number(s):	2020/00355032
Publication restriction:	(1) The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. The applicant is to be known by the pseudonym “EMQ”.