Fisher v Upper Lachlan Shire Council - [2022] NSWCATAD 65

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Fisher v Upper Lachlan Shire Council [2022] NSWCATAD 65
Hearing dates: On the papers
Date of orders: 2 March 2022
Decision date: 02 March 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
Decision:
(1) The decision of the Council, made on 3 August 2020, is affirmed.

Catchwords:
ADMINISTRATIVE LAW – merits review – access to government information – decision of the public sector agency that the information for which the applicant sought access was not held by the agency – reasonableness of searches for the information sought

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Freedom of Information Act 1989 (NSW)(repealed)
Government Information (Public Access) Act 2009 (NSW)
Inclosed Lands Protection Act 1901 (NSW)

Cases Cited:
Cianfrano v Director General Department of Commerce [2006] NSWADT 195
Commissioner of Police v Danis [2017] NSWCATAP 7
Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34
Fisher v Roads and Maritime Services NSW [2018] NSWCATAD 52
John Leo Fisher v R [2019] NSWDC 297
Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Texts Cited:
None cited

Category: Principal judgment
Parties: John Fisher (Applicant)
Upper Lachlan Shire Council (Respondent)
Representation: Applicant (self-represented)
A Croke (Director Finance and Administration of the Upper Lachlan Shire Council) (Respondent)

File Number(s): 2020/00024774
Publication restriction: Nil

Reasons for decision

The applicant, John Fisher (applicant), seeks administrative review of a decision of the Upper Lachlan Shire Council (Council), made under s 58 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), that it does not hold any further information in relation to the information for which he sought access.
It is the applicant’s contention that the Council has failed to meet its obligation, under s 53(2) of the GIPA Act, to undertake reasonable searches for all the information sought. The Council, on the other hand, asserts that it has met its obligations under s 53(2) of the GIPA Act in responding to the applicant’s access request, which, on the information before the Tribunal was made on 19 November 2019 and re-submitted on 23 December 2019.
As I have explained below, the decision the subject of review in this application is the decision made by the Council during the course of these proceedings, on 3 August 2020: see at [44].
The proceedings in this matter have been protracted and involved some complexity. However, after a number of case conferences, a preliminary hearing and a number of directions hearings the only information remaining in issue are the categories of ‘critically absent’ information the applicant asserts is, or should be, held by the Council: see at [47] below.
The Council asserts that it does not hold any further information.
For the reasons that follow, I have found that the decision of the Council is the correct and preferable decision and should be affirmed.

The background to the information sought by the applicant

The Upper Lachlan Shire is a local government area, in the region…

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 65
Decision Date: 02 March 2022

CaseChat Overview and Summary

The plaintiff, Fisher, sought access to certain documents held by the defendant, Upper Lachlan Shire Council, under the Government Information (Public Access) Act 2009 (GIPA). Fisher was concerned about the potential impacts of a development on a neighbouring property and wanted to review any documentation the Council held about the project. The Council refused Fisher's request, asserting that the documents were not held by the agency after conducting searches. Fisher appealed this decision to the tribunal, which upheld the Council's refusal.

The primary legal issue before the tribunal was whether the Council's decision to refuse Fisher's GIPA request was reasonable. This involved determining whether the Council had conducted an adequate search for the documents sought and whether the refusal was justified in the circumstances. The tribunal also needed to consider whether the Council's decision was procedurally fair and whether it complied with the requirements of the GIPA Act.

In its decision, the tribunal found that the Council had undertaken a reasonable search for the documents Fisher sought. The searches were comprehensive, and the Council had considered various sources of information, including electronic databases and physical files. The tribunal was satisfied that the Council had taken all necessary steps to locate the documents and that the refusal was reasonable. The tribunal also noted that Fisher had not provided any evidence to suggest that the Council's searches were inadequate or that the documents existed but were not located. The tribunal concluded that the Council's decision was lawful and that Fisher's appeal should be dismissed.

The tribunal affirmed the Council's decision, holding that the Council had acted reasonably in refusing Fisher's GIPA request. The tribunal found that the Council had conducted a thorough search for the documents and that the refusal was justified. The tribunal also noted that Fisher had not provided any evidence to suggest that the Council's searches were inadequate or that the documents existed but were not located. The tribunal held that the Council's decision was lawful and that Fisher's appeal should be dismissed.

Orders

Orders of the court

(1) The decision of the Council, made on 3 August 2020, is affirmed.

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 Upper Lachlan Shire Council [2022] NSWCATAD 65
Hearing dates:	On the papers
Date of orders:	2 March 2022
Decision date:	02 March 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	(1) The decision of the Council, made on 3 August 2020, is affirmed.
Catchwords:	ADMINISTRATIVE LAW – merits review – access to government information – decision of the public sector agency that the information for which the applicant sought access was not held by the agency – reasonableness of searches for the information sought
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Freedom of Information Act 1989 (NSW)(repealed) Government Information (Public Access) Act 2009 (NSW) Inclosed Lands Protection Act 1901 (NSW)
Cases Cited:	Cianfrano v Director General Department of Commerce [2006] NSWADT 195 Commissioner of Police v Danis [2017] NSWCATAP 7 Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 Fisher v Roads and Maritime Services NSW [2018] NSWCATAD 52 John Leo Fisher v R [2019] NSWDC 297 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173
Texts Cited:	None cited
Category:	Principal judgment
Parties:	John Fisher (Applicant) Upper Lachlan Shire Council (Respondent)
Representation:	Applicant (self-represented) A Croke (Director Finance and Administration of the Upper Lachlan Shire Council) (Respondent)
File Number(s):	2020/00024774
Publication restriction:	Nil