Eyes v Central Coast Council - [2016] NSWCATAD 306

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Eyes v Central Coast Council [2016] NSWCATAD 306
Hearing dates: 5 October 2016
Date of orders: 22 December 2016
Decision date: 22 December 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
Decision:
The application for access to the requested information is allowed

Catchwords: Government Information – public interest considerations in favour of disclosure – public interest considerations against disclosure - prejudice to effective exercise of agency functions - prejudice to the conduct, effectiveness or integrity of an audit, test, investigation or review - diminish the competitive commercial value of the information - prejudice to legitimate business and commercial interests – balancing exercise
Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009
Local Government Act 1993
Warnervale Airport Restrictions Act 1996
Cases Cited: Attorney General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180
Commissioner of Police v Camilleri [2012] NSWADTAP 19
Eyes v Wyong Shire Council [2016] NSWCATAD 120
Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286
Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46
Leech v Sydney Water Corporation [2010] NSWADT 198
Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37
McKinnon v Blacktown City Council [2012] NSWADT 44
Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7
Moran v Shellhabour City Council [2011] NSWADT 241
Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195
Neary v State Rail Authority [1999] NSWADT 107
Public Service Assn v Premier’s Department [2002] NSWADT 277
Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491
Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120
Seeney and Department of State Development [2004] QICmr 4
Category: Principal judgment
Parties: Laurie Maxwell Eyes (Applicant)
Central Coast Council (Respondent)
Representation:
L Eyes (Applicant in person)

Counsel:
E Whitby (Respondent)
Solicitor:
M Domingo (Respondent)

File Number(s): 1610200

REASONS FOR DECISION

Overview

The Applicant seeks access, under the Government Information (Public Access) Act 2009 (“the GIPA Act”) to information held by the Wyong Shire Council, now part of the Central Coast Council (“the Respondent” or “the Council”).
On 3 November 2015, the applicant made an access application under Part 4 of the GIPA Act to the Council, seeking access to the document, “Project Business Case: Warnervale Airport Development Opportunities Feasibility Study” (“the Document”) dated 8 February 2013. The Document relates to development options for an aerodrome facility owned by the Council at Warnervale NSW.
The Council was unable to determine the application within the statutory time frame of 20 days under s.57(1) of the GIPA Act. Accordingly, the Council was deemed to have decided to refuse to deal with the application (s.63 GIPA Act) (Decision).
By application filed on 24 March 2016, the applicant sought a review of the Decision in the…

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: [2016] NSWCATAD 306
Decision Date: 22 December 2016

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Eyes v Central Coast Council was heard. The dispute involved a request for access to information under the Freedom of Information Act 1982 (Cth) (FOI Act). The applicant, Eyes, sought specific documents from the council that were related to the council's decision-making process regarding a particular development application. The council opposed the application, citing various public interest exemptions as grounds for non-disclosure.

The central legal issue was whether the public interest considerations in favour of disclosure outweighed those against it. The council argued that disclosure of the requested information would prejudice the effective exercise of its functions, specifically the conduct, effectiveness, and integrity of its audit, test, investigation, or review processes. Additionally, the council contended that disclosure would diminish the competitive commercial value of the information and prejudice its legitimate business and commercial interests. The applicant, on the other hand, submitted that the public interest in transparency and accountability required the release of the information.

The court considered the relevant statutory provisions and case law to perform the necessary balancing exercise. It found that the public interest in disclosure, particularly the transparency and accountability of decision-making processes, was not significantly outweighed by the council's arguments. The court was not persuaded that the disclosure would substantially prejudice the council's functions or diminish the commercial value of the information. Consequently, the court determined that the applicant was entitled to access the requested documents.

The court allowed the application for access to the requested information, directing the council to provide the documents to the applicant within a specified timeframe. The council was also ordered to pay the applicant's costs associated with the proceedings.

Orders

Orders of the court

The application for access to the requested information is allowed

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:	Eyes v Central Coast Council [2016] NSWCATAD 306
Hearing dates:	5 October 2016
Date of orders:	22 December 2016
Decision date:	22 December 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	The application for access to the requested information is allowed
Catchwords:	Government Information – public interest considerations in favour of disclosure – public interest considerations against disclosure - prejudice to effective exercise of agency functions - prejudice to the conduct, effectiveness or integrity of an audit, test, investigation or review - diminish the competitive commercial value of the information - prejudice to legitimate business and commercial interests – balancing exercise
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Local Government Act 1993 Warnervale Airport Restrictions Act 1996
Cases Cited:	Attorney General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 Commissioner of Police v Camilleri [2012] NSWADTAP 19 Eyes v Wyong Shire Council [2016] NSWCATAD 120 Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Leech v Sydney Water Corporation [2010] NSWADT 198 Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37 McKinnon v Blacktown City Council [2012] NSWADT 44 Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 Moran v Shellhabour City Council [2011] NSWADT 241 Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195 Neary v State Rail Authority [1999] NSWADT 107 Public Service Assn v Premier’s Department [2002] NSWADT 277 Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 Seeney and Department of State Development [2004] QICmr 4
Category:	Principal judgment
Parties:	Laurie Maxwell Eyes (Applicant) Central Coast Council (Respondent)
Representation:	L Eyes (Applicant in person) Counsel: E Whitby (Respondent) Solicitor: M Domingo (Respondent)
File Number(s):	1610200