Goodenough v Coffs Harbour City Council - [2024] NSWCATAD 276

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Goodenough v Coffs Harbour City Council [2024] NSWCATAD 276
Hearing dates: 11 and 12 March 2024
Date of orders: 19 September 2024
Decision date: 19 September 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J D Little, Senior Member
Decision:
(1)   The orders numbered orders 4 and 5 made on 12 March 2024 be set aside to the extent that they pertain to the following information and/or documents (such that the following information and/or documents no longer fall within the meaning of "Confidential Material" as defined in order 2 made on 12 March 2024):
(a)   The names of the Transaction Documents.
(b)   The fact that the Implementation Agreement relates to, amongst other things, the transfer of certain assets for the operation, maintenance or development of the Airport and the grant of the lease of the "Leased Area" including the Enterprise Park.
(c)   The fact that the Development Agreement relates to the development of the "Leased Area" including the Enterprise Park.
(d)   The fact that the Transitional Services Agreement relates to the provision of services during a transitional period
(e)   The fact that the current zoning of the site proposed for the Enterprise Park and the need to rezone the site which is a matter of public knowledge as evidenced in the minutes and agendas of the Council and publicised in the media.
(f)   The Permission Letter.
(g)   Any other information disclosed publicly by virtue of this decision.
(h)   The documentary evidence relied upon by the Respondent and the Intervenor to contend that an obligation of confidentiality arises either with respect to the tender process or the executed Transaction Documents being:
(i)   the Confidentiality Provisions of each of the Transaction Documents including the definitions of the defined terms as used in those provisions;
(ii)   the Deed Poll;
(iii)   the Non-Binding Bids Process Letter; and
(iv)   the Binding Bids Process Letter
(2)   The decision of the Respondent is set aside.
(3)   Within 5 days of the making of these orders, a copy of this decision be provided to the Respondent and Intervenor with the following paragraphs unredacted:
(a)   Paragraphs marked “NOT FOR PUBLICATION”; and
(b)   Paragraphs marked “NOT FOR PUBLICATION FOR 35 DAYS”.
(4)   Within 35 days of the making of these orders:
(a)   The information responsive to the Infrastructure Information Access Request and the Rezoning Information Request (as defined at paragraph 2 of this decision) be provided to the Second Applicant by way of a redacted copy of the Development Agreement redacted consistent with paragraphs 252 and 253 of this decision.
(b)   A copy of this decision be published with the following paragraphs unredacted:
(i)   Paragraphs marked “NOT FOR PUBLICATION FOR 35 DAYS”

Catchwords:
ADMINISTRATIVE LAW – access to government information – access applications – balancing exercise - public interest considerations in favour of disclosure – public interest considerations against disclosure – whether overriding public interest against disclosure

Legislation Cited:
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013

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: [2024] NSWCATAD 276
Decision Date: 19 September 2024

CaseChat Overview and Summary

In the matter of Goodenough v Coffs Harbour City Council, the applicant sought access to various documents related to the development of a site for an enterprise park. The Coffs Harbour City Council resisted the application on the basis that the information was exempt from disclosure under the relevant legislation. The Federal Court was required to determine whether the public interest considerations in favour of disclosure outweighed those against it, and whether there was an overriding public interest against disclosure.

The court found that the public interest considerations in favour of disclosure included transparency and accountability in government decision-making, as well as the public's right to be informed about matters of public importance. On the other hand, the public interest considerations against disclosure included the potential harm to the council's reputation and the risk of commercial disadvantage to the council or third parties. The court also considered whether there was an overriding public interest against disclosure, but ultimately found that the public interest in transparency and accountability outweighed any potential harm to the council or third parties.

The court set aside certain orders made by the council and ordered that certain information be disclosed to the applicant, subject to redactions for confidentiality and commercial sensitivity. The court also ordered that certain paragraphs of the decision be published after a period of 35 days. The final orders included the provision of certain documents to the applicant, the publication of certain paragraphs of the decision, and the setting aside of certain orders made by the council.

Overall, the court found in favour of the applicant and ordered the disclosure of certain information related to the development of the enterprise park. The decision highlights the importance of transparency and accountability in government decision-making, as well as the need to balance competing public interest considerations when deciding whether to disclose confidential information.

Orders

Orders of the court

(1) The orders numbered orders 4 and 5 made on 12 March 2024 be set aside to the extent that they pertain to the following information and/or documents (such that the following information and/or documents no longer fall within the meaning of "Confidential Material" as defined in order 2 made on 12 March 2024):

(a) The names of the Transaction Documents.

(b) The fact that the Implementation Agreement relates to, amongst other things, the transfer of certain assets for the operation, maintenance or development of the Airport and the grant of the lease of the "Leased Area" including the Enterprise Park.

(c) The fact that the Development Agreement relates to the development of the "Leased Area" including the Enterprise Park.

(d) The fact that the Transitional Services Agreement relates to the provision of services during a transitional period

(e) The fact that the current zoning of the site proposed for the Enterprise Park and the need to rezone the site which is a matter of public knowledge as evidenced in the minutes and agendas of the Council and publicised in the media.

(f) The Permission Letter.

(g) Any other information disclosed publicly by virtue of this decision.

(h) The documentary evidence relied upon by the Respondent and the Intervenor to contend that an obligation of confidentiality arises either with respect to the tender process or the executed Transaction Documents being:

(i) the Confidentiality Provisions of each of the Transaction Documents including the definitions of the defined terms as used in those provisions;

(ii) the Deed Poll;

(iii) the Non-Binding Bids Process Letter; and

(iv) the Binding Bids Process Letter

(2) The decision of the Respondent is set aside.

(3) Within 5 days of the making of these orders, a copy of this decision be provided to the Respondent and Intervenor with the following paragraphs unredacted:

(a) Paragraphs marked “NOT FOR PUBLICATION”; and

(b) Paragraphs marked “NOT FOR PUBLICATION FOR 35 DAYS”.

(4) Within 35 days of the making of these orders:

(a) The information responsive to the Infrastructure Information Access Request and the Rezoning Information Request (as defined at paragraph 2 of this decision) be provided to the Second Applicant by way of a redacted copy of the Development Agreement redacted consistent with paragraphs 252 and 253 of this decision.

(b) A copy of this decision be published with the following paragraphs unredacted:

(i) Paragraphs marked “NOT FOR PUBLICATION FOR 35 DAYS”

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:	Goodenough v Coffs Harbour City Council [2024] NSWCATAD 276
Hearing dates:	11 and 12 March 2024
Date of orders:	19 September 2024
Decision date:	19 September 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J D Little, Senior Member
Decision:	(1) The orders numbered orders 4 and 5 made on 12 March 2024 be set aside to the extent that they pertain to the following information and/or documents (such that the following information and/or documents no longer fall within the meaning of "Confidential Material" as defined in order 2 made on 12 March 2024): (a) The names of the Transaction Documents. (b) The fact that the Implementation Agreement relates to, amongst other things, the transfer of certain assets for the operation, maintenance or development of the Airport and the grant of the lease of the "Leased Area" including the Enterprise Park. (c) The fact that the Development Agreement relates to the development of the "Leased Area" including the Enterprise Park. (d) The fact that the Transitional Services Agreement relates to the provision of services during a transitional period (e) The fact that the current zoning of the site proposed for the Enterprise Park and the need to rezone the site which is a matter of public knowledge as evidenced in the minutes and agendas of the Council and publicised in the media. (f) The Permission Letter. (g) Any other information disclosed publicly by virtue of this decision. (h) The documentary evidence relied upon by the Respondent and the Intervenor to contend that an obligation of confidentiality arises either with respect to the tender process or the executed Transaction Documents being: (i) the Confidentiality Provisions of each of the Transaction Documents including the definitions of the defined terms as used in those provisions; (ii) the Deed Poll; (iii) the Non-Binding Bids Process Letter; and (iv) the Binding Bids Process Letter (2) The decision of the Respondent is set aside. (3) Within 5 days of the making of these orders, a copy of this decision be provided to the Respondent and Intervenor with the following paragraphs unredacted: (a) Paragraphs marked “NOT FOR PUBLICATION”; and (b) Paragraphs marked “NOT FOR PUBLICATION FOR 35 DAYS”. (4) Within 35 days of the making of these orders: (a) The information responsive to the Infrastructure Information Access Request and the Rezoning Information Request (as defined at paragraph 2 of this decision) be provided to the Second Applicant by way of a redacted copy of the Development Agreement redacted consistent with paragraphs 252 and 253 of this decision. (b) A copy of this decision be published with the following paragraphs unredacted: (i) Paragraphs marked “NOT FOR PUBLICATION FOR 35 DAYS”
Catchwords:	ADMINISTRATIVE LAW – access to government information – access applications – balancing exercise - public interest considerations in favour of disclosure – public interest considerations against disclosure – whether overriding public interest against disclosure
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013