Hoggett v Campbelltown City Council

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Hoggett v Campbelltown City Council [2019] NSWCATAD 258
Hearing dates:	2 December 2019
Date of orders:	11 December 2019
Decision date:	11 December 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R L Hamilton SC, Senior Member
Decision:	Council’s decision is affirmed
Catchwords:	FREEDOM OF INFORMATION – Government Information (Public Access) Act 2009- ground of refusal-Development application and associated documents- infringement of copyright in plans etc
Legislation Cited:	Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Copyright Act 1968 (C’th)
Cases Cited:	Sandy v Kiama Municipal Council [2019] NSWCATAD 49 Volunteer Eco Students Abroad Pty Limited v Reach Out Volunteers Pty Limited [2013] FCA 731)
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Craig Hoggett (First Applicant) Kate Hoggett (Second Applicant) Naleeni Raj (Third Applicant) Della Maneze (Fourth Applicant) Wilson Zhang (Fifth Applicant) Campbelltown City Council (Respondent)
Representation:	Solicitors: First Applicant (Self Represented) Second Applicant (Self Represented) Third Applicant (Self Represented) Fourth Applicant (Self Represented) Fifth Applicant (Self Represented) Sparke Helmore (Respondent)
File Number(s):	2019/00219185
Publication restriction:	Nil

REASONS FOR DECISION

1. The applicants are purchasers of units in a new townhouse development in the respondent Council’s local government area. They allege that the townhouses suffer from a range of building defects. As part of their quest to obtain relevant documentation concerning the development they applied to Council pursuant to the Government Information (Public Access) Act 2009 (GIPA Act) for access to documents held by Council which relate to the development.

2. They are contemplating proceedings but have not commenced them yet.

3. Council has provided copies of a range of documents, but has not provided copies of the contentious documents in this matter. What it has provided is access to the contentious documents in “view only” mode using Council’s facilities.

4. Council has refused to provide copies of the contentious documents on the basis that to do so would involve an infringement of copyright (S 72(2)(c) GIPA Act. S 72 allows alternative forms of access if there would be an infringement of copyright.

5. The Tribunal has jurisdiction pursuant to s 100 GIPA Act and s 9 Administrative Decisions Review Act 1997. Council has the burden of justifying its decision (s 105 GIPA Act).

6. Section 72 GIPA Act provides as follows:

72   Forms of access

(1)   Access to government information in response to an access application may be provided in any of the following ways:

(a)   by providing a reasonable opportunity to inspect a record containing the information,

(b)   by providing a copy of a record containing the information,

(c)   by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),

(d)   by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.

(2)   The agency must provide access in…