Gauci v Commission for Fair Trading NSW

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Charles Gauci v Commission for Fair Trading NSW [2015] NSWCATAD 218
Hearing dates:	21 August 2015
Decision date:	21 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member
Decision:	(1) The decision of the Respondent is affirmed
Catchwords:	GOVERNMENT Information – Legal professional privilege – Legal advice – intention to obtain legal advice – conclusive presumption of overriding public interest against disclosure
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 (NSW) Government Information (Public Access) Act 2009
Cases Cited:	Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 Mannix v Department of Education and Communities [2014] NSWCATAD 35 Tebbutt v Minister for Lands and Water [2015] MSWCATAD 95
Category:	Principal judgment
Parties:	Charles Gauci (Applicant) Commission for Fair Trading NSW (Respondent)
Representation:	Solicitors: S Robosa (Respondent)
File Number(s):	1410650

REASONS FOR decision

1. Mr Charles Gauci is the applicant in these proceedings. In late 2013 the applicant (and another person) sought copies of documents relating to their recreational trailers (known in the industry as Fifth Wheeler Trailer / Caravans or ‘Fifth Wheelers’) from the respondent Agency. The respondent relied on a number of provisions to withhold release of some of the information, however during the course of these proceedings the respondent reviewed its position and released significant portions of the remaining ‘withheld’ documents. However for the reasons given below, the Tribunal finds that the legislation provides for the respondent to refuse to release the remaining material to the applicant in this instance.

Background

2. The documents related to various matters concerning the ‘fifth wheelers’ compliance for use in the Australian market including the jurisdiction which they were to be registered for use or certified for sale. These issues were pertinent as the ‘fifth wheeler trailers’ were manufactured overseas and imported into Australia. In order to be approved for sale in Australia following import, various modifications were required including significant modifications to the electrical system / fit-out.

3. On 8 January 2014 the respondent determined to provide the applicant (and the other person) with copies of the information that they sought under section 8 of the Government Information (Public Access) Act 2009 (the GIPA Act) informally. Following dissatisfaction with the 8 January 2014 scope of material released by the respondent, on 10 January 2014 the applicant ‘refiled’ his formal GIPA Act application which was received by the respondent on 2 February 2014. The access application sought ‘a copy of the final report of NSW Fair Trading Investigation reference 6641256.’

4. On 10 February 2014 the respondent determined the matter and decided to provide access to some of the documents (report) and to withhold some of the material. In withholding the material the respondent relied upon four provisions of the GIPA Act which in the respondent’s view outweighed the general presumption of a public interest in favour of disclosure of the material. In addition the respondent relied on…