Grande v Lismore City Council - [2024] NSWCATAD 33

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Grande v Lismore City Council [2024] NSWCATAD 33
Hearing dates: 18 September 2023
Date of orders: 09 February 2024
Decision date: 09 February 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: P French, Senior Member
Decision:
1. The agency’s decision to refuse to provide access to government information that falls within the scope of the applicant’s access request is set aside.
2. In part substitution for that decision, the Tribunal determines that the applicant is to be provided with access to the information in categories 1 to 13 at Annexure A of these reasons by 1 March 2024, subject to:
- the redaction of the names and signatures of Donnelly Blasting Pty Ltd’s personnel in accordance with s 74; and
- the redaction of the personal telephone numbers of neighbours and their contact persons in category 2.
3. Insofar as it concerns the information in categories 14 to 16 of Annexure A of these reasons, the access application is remitted to the agency for reconsideration in accordance with these reasons.
4. The agency is to notify the applicant and the Registrar of its new decision in relation to the category 14 to 16 information by 8 March 2024.
5. The applicant is to notify the agency and the Registrar if he wishes to proceed with an administrative review of the new decision or if his application is withdrawn by 15 March 2023.
6. If the applicant wishes to proceed with his administrative review application he must also apply to the Registrar to have the application listed for directions.

Catchwords:
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) -whether information is held by the agency – public interest considerations against disclosure – prejudice any person’s legitimate business, commercial, professional or financial interests

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW), ss 55, 63
Government Information (Public Access) 2009 (NSW), ss 3, 5, 9, 12, 13, 14, 15, 54, 55, 58, 74, 80, 100, 104, 105

Cases Cited:
Battin v University of New England [2013] NSWADT 73
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWCATAP 25
Newcastle City Council v Newcastle East Residents Act Group [2018] NSWCATAP 259
Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286
Transport for NSW v Searle [2018] NSWCATAP 93

Texts Cited:
Nil

Category: Principal judgment
Parties: Nicholas Grande (Applicant)
Lismore City Council (Respondent)
Representation:
Counsel:
R D Turnbull (Applicant)
Solicitors:
Local Government Legal (Respondent)

File Number(s): 2023/00167302
Publication restriction: Nil

REASONS FOR DECISION

Introduction

This is an application by Nicholas Grande (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for an administrative review of a decision of the delegate of Lismore City Council made on 14 December 2023 (the original decision) in response to an access application he made which was deemed complete on 24 November 2022. This application…

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 33
Decision Date: 09 February 2024

CaseChat Overview and Summary

In the case of Grande v Lismore City Council, the applicant sought access to government information under the Government Information (Public Access) Act 2009 (NSW). The dispute centred on the refusal by the Lismore City Council to provide certain information to the applicant. The matter was brought before the Administrative Appeals Tribunal (AAT) for review.

The primary legal issues before the Tribunal were whether the information sought was held by the agency and whether there were public interest considerations that justified the refusal to disclose the information. Specifically, the Tribunal had to determine if the disclosure of the information could reasonably be expected to prejudice any person’s legitimate business, commercial, professional or financial interests.

The Tribunal held that the agency was entitled to take into account the personal factors of the application, as provided by the Act, in determining whether there was an overriding public interest against disclosure. However, the Tribunal found that the agency had not adequately considered these factors and had failed to provide sufficient justification for the refusal to disclose certain information. Consequently, the Tribunal set aside the agency’s decision to refuse access to the information in categories 1 to 13 and ordered the agency to provide access to this information, subject to certain redactions. For the information in categories 14 to 16, the Tribunal remitted the matter back to the agency for reconsideration in accordance with the Tribunal’s reasons.

The Tribunal ordered that the agency must provide the applicant with access to the specified categories of information by 1 March 2024, with appropriate redactions. The agency was also required to notify the applicant and the Registrar of its new decision regarding the information in categories 14 to 16 by 8 March 2024. The applicant was directed to notify the agency and the Registrar if they wished to proceed with an administrative review of the new decision or if their application was withdrawn by 15 March 2023. If the applicant chose to proceed with the review, they were required to apply to the Registrar to have the application listed for directions.

Orders

Orders of the court

1. The agency’s decision to refuse to provide access to government information that falls within the scope of the applicant’s access request is set aside.

2. In part substitution for that decision, the Tribunal determines that the applicant is to be provided with access to the information in categories 1 to 13 at Annexure A of these reasons by 1 March 2024, subject to:

- the redaction of the names and signatures of Donnelly Blasting Pty Ltd’s personnel in accordance with s 74; and

- the redaction of the personal telephone numbers of neighbours and their contact persons in category 2.

3. Insofar as it concerns the information in categories 14 to 16 of Annexure A of these reasons, the access application is remitted to the agency for reconsideration in accordance with these reasons.

4. The agency is to notify the applicant and the Registrar of its new decision in relation to the category 14 to 16 information by 8 March 2024.

5. The applicant is to notify the agency and the Registrar if he wishes to proceed with an administrative review of the new decision or if his application is withdrawn by 15 March 2023.

6. If the applicant wishes to proceed with his administrative review application he must also apply to the Registrar to have the application listed for directions.

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

Which decisions are reviewable decisions Determination of administrative review by Tribunal In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: Presumption in favour of disclosure of Government Information Access applications A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4(Access applications) unless there is an overriding public interest against disclosure of the information. Public interest considerations in favour of disclosure There is a general public interest in favour of the disclosure of government information. Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Public interest test Public interest considerations against disclosure It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in schedule 1. The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purposes of determining whether there is an overriding public interest against disclosure of government information. The Table 14(2) considerations that are relevant in these proceedings are: Individual rights, judicial processes and natural justice: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - Business interests of agencies and other persons: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - Principles that apply to public interest determination Consultation on public interest considerations An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that – Information relating to a person is of a kind that requires consultation under this section if the information – The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection.

Ratio Decidendi

Legal Principle Established

Consideration of personal factors of application In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the “personal factors of the application”) into account as provided by this section - The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses -2-5 (but not clause 1, 6 or 7) of the Table to section 14. The applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Part 4, Division 4 sets out how access applications are to be decided. Section 58 relevantly provides: How applications are decided An agency decides an access application for government information by: Deletion of information from copy of record to be accessed Right of appearance before NCAT Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review. Section 105(1) in that Division provides, relevantly, that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of those exceptions are relevant in this case.

Medium Neutral Citation:	Grande v Lismore City Council [2024] NSWCATAD 33
Hearing dates:	18 September 2023
Date of orders:	09 February 2024
Decision date:	09 February 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P French, Senior Member
Decision:	1. The agency’s decision to refuse to provide access to government information that falls within the scope of the applicant’s access request is set aside. 2. In part substitution for that decision, the Tribunal determines that the applicant is to be provided with access to the information in categories 1 to 13 at Annexure A of these reasons by 1 March 2024, subject to: - the redaction of the names and signatures of Donnelly Blasting Pty Ltd’s personnel in accordance with s 74; and - the redaction of the personal telephone numbers of neighbours and their contact persons in category 2. 3. Insofar as it concerns the information in categories 14 to 16 of Annexure A of these reasons, the access application is remitted to the agency for reconsideration in accordance with these reasons. 4. The agency is to notify the applicant and the Registrar of its new decision in relation to the category 14 to 16 information by 8 March 2024. 5. The applicant is to notify the agency and the Registrar if he wishes to proceed with an administrative review of the new decision or if his application is withdrawn by 15 March 2023. 6. If the applicant wishes to proceed with his administrative review application he must also apply to the Registrar to have the application listed for directions.
Catchwords:	ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) -whether information is held by the agency – public interest considerations against disclosure – prejudice any person’s legitimate business, commercial, professional or financial interests
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), ss 55, 63 Government Information (Public Access) 2009 (NSW), ss 3, 5, 9, 12, 13, 14, 15, 54, 55, 58, 74, 80, 100, 104, 105
Cases Cited:	Battin v University of New England [2013] NSWADT 73 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWCATAP 25 Newcastle City Council v Newcastle East Residents Act Group [2018] NSWCATAP 259 Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 Transport for NSW v Searle [2018] NSWCATAP 93
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Nicholas Grande (Applicant) Lismore City Council (Respondent)
Representation:	Counsel: R D Turnbull (Applicant) Solicitors: Local Government Legal (Respondent)
File Number(s):	2023/00167302
Publication restriction:	Nil