FHG v Cumberland City Council - [2021] NSWCATAD 379

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: FHG v Cumberland City Council [2021] NSWCATAD 379
Hearing dates: 30 August 2021 and 7 October 2021
Date of orders: 23 December 2021
Decision date: 18 February 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: P H Molony, Senior Member
Decision:
(1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the publication or disclosure to the applicant or the public of paragraph 92 of these reasons is prohibited.
(2)   The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant’s access requests numbered 1, 2 and 3, and in its place orders that:
(a)   The applicant be provided with unredacted copies of the documents identified in Mr Karaki’s statement of 14 July 2021 as documents numbered 5, 10, 11, 15, 16, 17, and 20;
(b)   The applicant is refused access to documents 1 and 6; and,
(c)   The balance of the access application be remitted for reconsideration in accordance with these reasons, which reconsideration shall include further searches and consideration of documents responsive to these requests, notably those which the Tribunal has indicated there are reasonable grounds for believing might exist. Such reconsideration to be completed by 30 January 2022.
(3)   The Tribunal remits for reconsideration in accordance with these reasons the Applicant’s access request numbered 4, such reconsideration to be completed by 30 January 2022.
(4)   The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant access request numbered 5 and, in its place, determines that information responsive to this request is already available to the applicant.

Catchwords:
ADMINISTRATIVE LAW – government information – access application – applications to be given wide scope - agency’s failure to search for information sought – overriding secrecy laws - legal professional privilege –excluded information - whether overriding public interest against disclosure of information.

Legislation Cited:
Administrative Review Decisions Act 1997
Children and Young Persons (Care and Protection) Act 1998
Children’s Guardian Act 2019
Civil and Administrative Tribunal Act 2013
Evidence Act 1995
Government Information (Public Access) Act 2009
Ombudsman Act 1974

Cases Cited:
AIN v Medical Council of New South Wales [2015] NSWCATAP 241
Commissioner of Police, New South Wales Police Force v Barrett [2015] NSWCATAP 68
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
EDD v Secretary, Department of Communities and Justice [2019] NSWCATAD 255
Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72
H M & O Investments Pty Ltd v Ingram (No 1) [2011] NSWSC 550,
Lonsdale v University of Sydney [2015] NSWCATAP 277
Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 14
Wojciechowska v Commissioner of Police [2020] NSWCATAP 257

Texts Cited:
Desiatnik, Legal Professional Privilege in Australia, 3rd Ed (2016) Lexis Nexus

Category: Principal judgment
Parties: Applicant – FHG
Respondent – Cumberland City Council
Representation: Applicant – self represented
Respondent – C. McFadzen
Information Commissioner -

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: [2021] NSWCATAD 379
Decision Date: 18 February 2022

CaseChat Overview and Summary

The case of FHG v Cumberland City Council before the Civil and Administrative Tribunal (CAT) involved a dispute concerning the applicant's access requests to information held by the Cumberland City Council. The applicant sought various documents in relation to their application for a development approval. The council provided some documents but refused to release others, citing reasons such as overriding secrecy laws and legal professional privilege. The applicant sought internal review of the council's decisions, which was ultimately dismissed, leading to the applicant's appeal to the CAT.

The central legal issues before the CAT were whether the council's decisions to refuse access to certain documents were legally sound and whether the council had adequately searched for and considered all relevant documents in response to the applicant's access requests. Additionally, the CAT needed to determine if the council's refusal to disclose certain information was justified under the overriding secrecy laws and legal professional privilege exceptions.

The CAT found that the council's decisions were flawed and set them aside. The Tribunal concluded that the council had not sufficiently searched for information responsive to the applicant's requests, particularly where there were reasonable grounds to believe that such documents might exist. The CAT also found that the council had improperly refused access to certain documents, either due to inadequate justification or by not considering relevant documents. The Tribunal determined that the council's internal review did not adequately address these issues. Consequently, the CAT ordered the council to provide unredacted copies of certain documents, refused access to specific documents, and remitted other access requests for reconsideration, including further searches for responsive documents.

In summary, the CAT ordered the council to provide specific documents to the applicant, refused access to other documents, and mandated the reconsideration of further access requests within a specified timeframe. This decision underscored the importance of thorough searches and proper justifications when refusing access to information under government information access laws.

Orders

Orders of the court

(1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the publication or disclosure to the applicant or the public of paragraph 92 of these reasons is prohibited.

(2) The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant’s access requests numbered 1, 2 and 3, and in its place orders that:

(a) The applicant be provided with unredacted copies of the documents identified in Mr Karaki’s statement of 14 July 2021 as documents numbered 5, 10, 11, 15, 16, 17, and 20;

(b) The applicant is refused access to documents 1 and 6; and,

(c) The balance of the access application be remitted for reconsideration in accordance with these reasons, which reconsideration shall include further searches and consideration of documents responsive to these requests, notably those which the Tribunal has indicated there are reasonable grounds for believing might exist. Such reconsideration to be completed by 30 January 2022.

(3) The Tribunal remits for reconsideration in accordance with these reasons the Applicant’s access request numbered 4, such reconsideration to be completed by 30 January 2022.

(4) The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant access request numbered 5 and, in its place, determines that information responsive to this request is already available to the applicant.

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:	FHG v Cumberland City Council [2021] NSWCATAD 379
Hearing dates:	30 August 2021 and 7 October 2021
Date of orders:	23 December 2021
Decision date:	18 February 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P H Molony, Senior Member
Decision:	(1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the publication or disclosure to the applicant or the public of paragraph 92 of these reasons is prohibited. (2) The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant’s access requests numbered 1, 2 and 3, and in its place orders that: (a) The applicant be provided with unredacted copies of the documents identified in Mr Karaki’s statement of 14 July 2021 as documents numbered 5, 10, 11, 15, 16, 17, and 20; (b) The applicant is refused access to documents 1 and 6; and, (c) The balance of the access application be remitted for reconsideration in accordance with these reasons, which reconsideration shall include further searches and consideration of documents responsive to these requests, notably those which the Tribunal has indicated there are reasonable grounds for believing might exist. Such reconsideration to be completed by 30 January 2022. (3) The Tribunal remits for reconsideration in accordance with these reasons the Applicant’s access request numbered 4, such reconsideration to be completed by 30 January 2022. (4) The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant access request numbered 5 and, in its place, determines that information responsive to this request is already available to the applicant.
Catchwords:	ADMINISTRATIVE LAW – government information – access application – applications to be given wide scope - agency’s failure to search for information sought – overriding secrecy laws - legal professional privilege –excluded information - whether overriding public interest against disclosure of information.
Legislation Cited:	Administrative Review Decisions Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children’s Guardian Act 2019 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Government Information (Public Access) Act 2009 Ombudsman Act 1974
Cases Cited:	AIN v Medical Council of New South Wales [2015] NSWCATAP 241 Commissioner of Police, New South Wales Police Force v Barrett [2015] NSWCATAP 68 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 EDD v Secretary, Department of Communities and Justice [2019] NSWCATAD 255 Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 H M & O Investments Pty Ltd v Ingram (No 1) [2011] NSWSC 550, Lonsdale v University of Sydney [2015] NSWCATAP 277 Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 14 Wojciechowska v Commissioner of Police [2020] NSWCATAP 257
Texts Cited:	Desiatnik, Legal Professional Privilege in Australia, 3rd Ed (2016) Lexis Nexus
Category:	Principal judgment
Parties:	Applicant – FHG Respondent – Cumberland City Council
Representation:	Applicant – self represented Respondent – C. McFadzen Information Commissioner -