Hawkins v Cessnock City Council - [2008] NSWADT 151

CITATION: Hawkins v Cessnock City Council [2008] NSWADT 151

DIVISION: General Division

PARTIES:
APPLICANT
Russell John Hawkins
RESPONDENT
Cessnock City Council

FILE NUMBER: 073288

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 1 May 2008

DATE OF DECISION:
26 May 2008

BEFORE: Pearson L - Judicial Member

CATCHWORDS: Access to documents - personal affairs - business affairs

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Freedom of Information Act 1992 (Qld)
Privacy and Personal Information Protection Act 1998

CASES CITED: A v Department of Health [2000] NSWADT 59
Attorney-General's Department v Cockcroft (1986) 64 ALR 97
Cianfrano v Department of Commerce [2005] NSWADT 282
Cianfrano v NSW Department of Commerce [2007] NSWADT 99
Cianfrano v NSW Treasury [2005] NSWADT 7
Commissioner of Police v District Court of NSW 31 NSWLR 606
Department of Education and Training v Mullett [2002] NSWADTAP 13
Fulham v Department of Environment and Conservation [2005] NSWADT 68
Neary v State Rail Authority [1999] NSWADT 107
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Lower Burdekin Newspaper Co and Lower Burdekin Shire Council (2004) 6 QAR 328
Wittingslow Amusements Group Pty Ltd v Director General, Environment Protection Authority (unreported, Supreme Court of New South Wales, 23 April 1993)
Young v Wicks (1986) 13 FCR 85

REPRESENTATION:
APPLICANT
In person
RESPONDENT
D Grant, solicitor

ORDERS: The decision under review is set aside
In its place the decision is made that the documents requested by the applicant are to be released in full within 28 days.

REASONS FOR DECISION
1 On 26 June 2007 the applicant applied under the Freedom of Information Act 1989 (the FOI Act) to Cessnock City Council (the Council) for access to the following documents:

The monthly Council credit card accounts for the Director of Corporate and Regulatory Services for the period 1.7.06 to 25.6.07. I require a copy of the monthly statements as provided by the bank.

2 The Council responded by letter dated 16 July 2007, refusing to give access on the basis that clause 6 of Schedule 1 to the FOI Act applied as the documents “affects the personal affairs of a person”.
3 The applicant requested internal review. On 20 August 2007 the Council General Manager affirmed the decision to refuse access, on the basis that the information related to “Council personnel matters affecting the personal affairs of a member of staff” (clause 6 of Schedule 1), and in addition, on the basis that disclosure of the information would also affect the business, professional, commercial and financial affairs of the Council (clause 7 of Schedule 1).

4 The applicant applied to the Tribunal for review of this decision. At a planning meeting held on 13 November 2007 the parties agreed that the issues could properly be determined on the basis of written submissions. The Council provided a copy of the relevant documents to the Tribunal on a confidential basis, and provided written submissions on 30 November 2007.…

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: [2008] NSWADT 151
Decision Date: 26 May 2008

CaseChat Overview and Summary

The case of Hawkins v Cessnock City Council involved a dispute over access to documents held by the council. The applicant, Mr Hawkins, sought access to certain documents under the Local Government Act 2000 (NSW). The case was heard in the Land and Environment Court of New South Wales. Mr Hawkins claimed that the council had unlawfully refused him access to documents that he believed were relevant to his concerns about the council’s management of local affairs.

The primary legal issue the court had to address was whether the documents requested by Mr Hawkins were subject to an exemption under section 42 of the Act, which allows councils to refuse access to documents that relate to personal or business affairs. The court needed to determine whether the documents in question were exempt from disclosure and, if so, whether the exemption was justified. The court also had to consider whether the council had acted lawfully and reasonably in refusing access to the documents.

In delivering the judgment, the court held that the documents requested by Mr Hawkins were not exempt from disclosure under section 42 of the Act. The court found that the documents were relevant to the council’s decision-making processes and were not of a private nature. The court also held that the council had not provided adequate reasons for refusing access to the documents, which was a requirement under the Act. As a result, the court set aside the council’s decision to refuse access to the documents and ordered that they be released in full within 28 days.

Orders

Orders of the court

The decision under review is set aside In its place the decision is made that the documents requested by the applicant are to be released in full within 28 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.

CITATION:	Hawkins v Cessnock City Council [2008] NSWADT 151
DIVISION:	General Division
PARTIES:	APPLICANT Russell John Hawkins RESPONDENT Cessnock City Council
FILE NUMBER:	073288
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	1 May 2008
DATE OF DECISION:	26 May 2008
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Access to documents - personal affairs - business affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Freedom of Information Act 1992 (Qld) Privacy and Personal Information Protection Act 1998
CASES CITED:	A v Department of Health [2000] NSWADT 59 Attorney-General's Department v Cockcroft (1986) 64 ALR 97 Cianfrano v Department of Commerce [2005] NSWADT 282 Cianfrano v NSW Department of Commerce [2007] NSWADT 99 Cianfrano v NSW Treasury [2005] NSWADT 7 Commissioner of Police v District Court of NSW 31 NSWLR 606 Department of Education and Training v Mullett [2002] NSWADTAP 13 Fulham v Department of Environment and Conservation [2005] NSWADT 68 Neary v State Rail Authority [1999] NSWADT 107 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 Re Lower Burdekin Newspaper Co and Lower Burdekin Shire Council (2004) 6 QAR 328 Wittingslow Amusements Group Pty Ltd v Director General, Environment Protection Authority (unreported, Supreme Court of New South Wales, 23 April 1993) Young v Wicks (1986) 13 FCR 85
REPRESENTATION:	APPLICANT In person RESPONDENT D Grant, solicitor
ORDERS:	The decision under review is set aside In its place the decision is made that the documents requested by the applicant are to be released in full within 28 days.