Guthrie v Lane Cove Council

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Guthrie v Lane Cove Council [2019] NSWCATAD 74
Hearing dates:	15 April 2019
Date of orders:	30 April 2019
Decision date:	30 April 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R L Hamilton SC, Senior Member
Decision:	Application dismissed
Catchwords:	ADMINISTRATIVE LAW- freedom of information, government information public access- information supplied in response to application-scope of application-jurisdiction
Legislation Cited:	Administrative Decisions Review Act 1997 NSW Civil and Administrative Tribunal Act 2013 NSW Government Information (Public Access) Act 2009 NSW
Cases Cited:	Nil
Category:	Principal judgment
Parties:	M Guthrie (Applicant) Lane Cove Council (Respondent)
Representation:	Solicitors: M Guthrie (Self Represented)(Applicant) Sparke Helmore (Respondent)
File Number(s):	2018/00357915
Publication restriction:	Nil

REASONS FOR DECISION

1. This is an application for review of a decision taken under the Government Information (Public Access) Act 2009 (GIPA Act). The applicant is a ratepayer in the Lane Cove Council Local Government Area. The Council has entered a conditional agreement to grant a lease of land to Australian Unity (AU) for development as an aged care facility. The applicant is seeking certain details of the contractual arrangements between the Council and AU.

Jurisdiction

2. The Tribunal obtains its jurisdiction to review the agency’s decision under s100 GIPA Act (which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997(ADR Act)); ss9 and 63 of the ADR Act; read together with s30 of the Civil & Administrative Tribunal Act 2013 (CAT Act). The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law (s63(1) ADR Act). The Tribunal makes its own decision in place of the respondent without any presumption that the agency’s decision is correct.

3. The application when commenced sought a review of certain aspects of the decision of the Council (the agency).The access application dated 19 July 2018 requested the following information:

“Details concerning 266 Longueville Road DA117/17 payments made/to be made by Australian Unity to Council:

(1)   Before July 2018 total $ .

(2)   July, Aug, Sept, Oct, Nov, Dec 2018 $ by month.

(3)   Jan 2019 on – total $ ”

4. There was disputation between the parties for some time over the application. Access was ultimately provided to information concerning payments before July 2018. It was determined that information about payments between July and December 2018 were not held by the agency. Access was refused to information about payments from January 2019 onwards on the grounds of overriding public interest against disclosure of the information.

5. The applicant narrowed his access request by letter dated 8 February 2019. The applicant stated “What I require is primary data, specifically the clauses in the contract which relate to your point 4 ‘the lease agreement becomes active…’ and point 5 ‘AU are contractually obligated---’. Having received that,…