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Fisher v Goulburn Mulwaree Council

Fisher v Goulburn Mulwaree Council

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Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34
Hearing dates: 7 August 2018; 5 September 2018
Date of orders: 28 February 2019
Decision date: 28 February 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
Decision:
(1) The Tribunal sets aside the administratively reviewable decision and remits the matter for reconsideration by the Respondent in accordance with the reasons for this decision and the recommendations at 56 and 57 above, within 28 days.
(2) Matter is listed for directions on 8 April 2019 at 12pm.

Catchwords: ADMINISTRATIVE LAW - GIPA Act – Government Information – access – record keeping – relevance - sufficiency of searches.
Legislation Cited: Administrative Decisions Review Act 1997
Archives Act 1960
Civil and Administrative Tribunal Act 2013
Freedom of Information Act 1989
Government Information (Public Access) Act 2009
Local Government Act 1993
Roads Act 1993
State Records Act 1998
The General Records Disposal Schedule for Local Government in NSW 1988
Cases Cited: Beesly v Commissioner of Police, New South Wales Police Service [2002] NSWADT 52
Camilleri v Commissioner of Police [2012] NSWADT 5
Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195
Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56
Hula v Commissioner of Police (NSW) [2013] NSWADT 153
Miriani v Commissioner of New South Wales Police [2005] NSWADT 187
Public Service Assn v Premier’s Department [2002] NSWADT 277
Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123
Texts Cited: C Hurley, “From dustbins to disk-drives: a survey of archives legislation in Australia”. In S McKemmish & M Piggott, (Eds) “The Records Continuum: Ian Maclean and Australian Archives First Fifty Years” (1994), Australia: Ancora Press
S Mowbray and S McCausland, “Archives and Local Government-the ASA NSW Branch Local Government Archives project” (1992) presented at the ASA (Australian Society of Archivists) National Conference at Wagga Wagga.
Category: Principal judgment
Parties: John Fisher (Applicant)
Goulburn Mulwaree Council (Respondent)
Representation:
Counsel:
M Hall (Respondent)
Solicitors:
J Fisher (Self Represented)(Applicant)
RGS Law (Respondent)

File Number(s): 2018/00042068
Publication restriction: Nil

REASONS FOR DECISION

On the Federal Highway between Goulburn and Collector in New South Wales, there is a right hand turn onto Taradale Road, which runs between the Federal Highway and Currawang Road to the south east for close to 8km. The Applicant’s property, Taradale, is located about half way down Taradale Road. The Applicant’s family, the Fishers, have owned land there for more than a century.
Municipal responsibility for Taradale Road has shifted with recent council amalgamations. The 2004 amalgamation of Goulburn City Council and Mulwaree Shire Council and the 2016 amalgamation of Queanbeyan and Palerang Councils have created some confusion as to which local government entity was, throughout the years, responsible for record keeping, surveys, upkeep and maintenance of Taradale Road.
On 10 February 2017 John Fisher (Applicant) sought access to the following information from Goulburn Mulwaree Council (Respondent), pursuant to the Government Information (Public Access) Act

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: [2019] NSWCATAD 34
Decision Date: 28 February 2019

CaseChat Overview and Summary

Fisher brought a claim against Goulburn Mulwaree Council under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to certain government information. Fisher sought information in relation to land management activities, specifically records regarding the removal of trees on land he owns. The Local Administrative Appeals Tribunal (LAAT) was tasked with reviewing the Council's decision to deny Fisher's request.

The central legal issues were whether the Council's searches for records were sufficient and whether the records in question were relevant to Fisher's request. Fisher argued that the Council's searches were inadequate and that the Council had not considered whether the withheld records were relevant to his request. The Council, on the other hand, maintained that its searches were thorough and that the records were not relevant to the request. The Tribunal needed to determine whether the Council had met its obligations under the GIPA Act.

The Tribunal found that the Council had not adequately justified the sufficiency of its searches and had failed to consider whether the records were relevant to Fisher's request. It was noted that the Council had not provided detailed records of its searches or explained why it believed the searches were sufficient. Furthermore, the Tribunal held that the Council had not adequately considered whether the withheld records were relevant, as it had not provided a clear explanation of the connection between the records and Fisher's request. The Tribunal concluded that the Council's decision was flawed and remitted the matter for reconsideration. The Tribunal also recommended that the Council improve its record-keeping and review processes to ensure compliance with the GIPA Act.

The Tribunal set aside the Council's decision and directed that the matter be reconsidered within 28 days. The Tribunal also listed the matter for directions on 8 April 2019 at 12pm. The Tribunal's decision highlights the importance of thorough record-keeping and careful consideration of relevance when responding to GIPA requests.

Orders

Orders of the court

(1) The Tribunal sets aside the administratively reviewable decision and remits the matter for reconsideration by the Respondent in accordance with the reasons for this decision and the recommendations at 56 and 57 above, within 28 days.

(2) Matter is listed for directions on 8 April 2019 at 12pm.

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:	Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34
Hearing dates:	7 August 2018; 5 September 2018
Date of orders:	28 February 2019
Decision date:	28 February 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1) The Tribunal sets aside the administratively reviewable decision and remits the matter for reconsideration by the Respondent in accordance with the reasons for this decision and the recommendations at 56 and 57 above, within 28 days. (2) Matter is listed for directions on 8 April 2019 at 12pm.
Catchwords:	ADMINISTRATIVE LAW - GIPA Act – Government Information – access – record keeping – relevance - sufficiency of searches.
Legislation Cited:	Administrative Decisions Review Act 1997 Archives Act 1960 Civil and Administrative Tribunal Act 2013 Freedom of Information Act 1989 Government Information (Public Access) Act 2009 Local Government Act 1993 Roads Act 1993 State Records Act 1998 The General Records Disposal Schedule for Local Government in NSW 1988
Cases Cited:	Beesly v Commissioner of Police, New South Wales Police Service [2002] NSWADT 52 Camilleri v Commissioner of Police [2012] NSWADT 5 Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195 Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56 Hula v Commissioner of Police (NSW) [2013] NSWADT 153 Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 Public Service Assn v Premier’s Department [2002] NSWADT 277 Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123
Texts Cited:	C Hurley, “From dustbins to disk-drives: a survey of archives legislation in Australia”. In S McKemmish & M Piggott, (Eds) “The Records Continuum: Ian Maclean and Australian Archives First Fifty Years” (1994), Australia: Ancora Press S Mowbray and S McCausland, “Archives and Local Government-the ASA NSW Branch Local Government Archives project” (1992) presented at the ASA (Australian Society of Archivists) National Conference at Wagga Wagga.
Category:	Principal judgment
Parties:	John Fisher (Applicant) Goulburn Mulwaree Council (Respondent)
Representation:	Counsel: M Hall (Respondent) Solicitors: J Fisher (Self Represented)(Applicant) RGS Law (Respondent)
File Number(s):	2018/00042068
Publication restriction:	Nil