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IPART v Services Sydney Pty Ltd (GD)

IPART v Services Sydney Pty Ltd (GD)

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Case Copied 5 December 2008 47 min read

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Appeal Panel - Internal

CITATION: IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79

PARTIES:
APPELLANTS
(1) Independent Pricing and Regulatory Tribunal
(2) Premier of New South Wales
RESPONDENTS
(1) Services Sydney Pty Ltd
(2) Sydney Water Corporation

FILE NUMBER: 089036

HEARING DATES: 18 July 2008

DATE OF DECISION:
5 December 2008

BEFORE: O'Connor K - DCJ (President); Pearson L - Judicial Member; Blake C - Non-Judicial Member

CATCHWORDS:
Freedom of Information - Restricted Documents - Reasonable Grounds - Nature of Jurisdiction of Tribunal - section 57 - Relationship with section 63.
- Freedom of Information - Business Affairs, Internal Working Documents, Confidential Information Exemptions - Public Interest - Whether Information can be obtained by Use of Powers of Compulsion - Relevance.

DECISION UNDER APPEAL: Services Sydney Pty Ltd v Independent Pricing and Regulatory Tribunal and Anor [2008] NSWADT 100

FILE NUMBER UNDER APPEAL: 073180

DATE OF DECISION UNDER APPEAL: 04/03/2008

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989
Therapeutic Goods Act 1966 (Cth)

CASES CITED: Attorney General’s Department v Cockcroft (1986) 64 ALR 97
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bag and Jute Co (Tw’th) Pty Ltd and Collector of Customs [1993] AATA 350; (1993) 18 AAR 477
BY -v- Director General, Attorney General's Department [2002] NSWADT 79
Chief Executive Officer, State Rail Authority v Woods (No. 2) (GD) [2003] NSWADTAP 39
Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Harshaw and Australian Competition and Consumer Commission [2007] AATA (26 October 2007)
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Neary v State Rail Authority [1999] NSWADT 107
Re Organon (Australia) Pty Ltd and Department of Community Services and Health: Public Interest Advocacy Centre (1987) 13 ALD 588
Services Sydney Pty Ltd v Independent Pricing and Regulatory Tribunal and anor [2008] NSWADT 100
University of New South Wales v McGuirk [2006] NSWSC 1362

REPRESENTATION:
FIRST AND SECOND APPELLANTS
M Izzo, counsel/G Shirm, Crown Solicitor's Office
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
No appearance

ORDERS: 1. Appeal allowed.
2. Orders 2 and 3 of the Tribunal set aside, as they relate to Documents 2, 5, 16, 23, 24 and 27.
3. Order 4 vacated.
4. Leave granted to extend the appeal to the merits.
5. Determination under review affirmed as to Documents 23, 24 and 27.
6. Registrar to arrange a directions hearing attended by the review applicant and the first and second respondents to the review application for the purpose of making directions in relation to the future course of this matter as it relates to the agency’s determination in relation to Documents 2, 5 and 16.

1 The Independent Pricing and Regulatory Tribunal (IPART) refused Services Sydney Pty Ltd access to some…

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] NSWADTAP 79
Decision Date: 5 December 2008

CaseChat Overview and Summary

The case before the court was an appeal by the Independent Pricing and Regulatory Tribunal (IPART) against a decision of the Administrative Appeals Tribunal (AAT). Services Sydney Pty Ltd, a respondent in the underlying proceeding, was the subject of the dispute over the disclosure of certain documents under the Freedom of Information Act. The appeal hinged on the interpretation of the Act and the applicable exemptions, specifically in relation to documents that were either confidential or related to internal workings of a business.

The primary legal issues addressed by the court were the applicability of various sections of the Freedom of Information Act, particularly sections 57 and 63, and the nature of the exemptions provided under the Act for business affairs and internal working documents. The court was required to determine whether the documents in question were subject to the exemptions and if the Tribunal had the jurisdiction to order their disclosure. Furthermore, the court had to consider whether the public interest in disclosure outweighed the exemptions and if the powers of compulsion could be used to obtain the information.

The court found that the AAT had erred in its interpretation of the Freedom of Information Act by not properly considering the exemptions applicable to the documents in question. The court held that the documents were subject to exemptions related to business affairs and internal workings, and thus, the orders for disclosure were not justified. The court also found that the Tribunal did not have the requisite jurisdiction to compel the disclosure of these documents under the Act. The appeal was allowed in part, and certain orders of the Tribunal were set aside. The court further affirmed the determination of the agency in relation to some documents, while granting leave to extend the appeal to the merits for the remaining documents. A directions hearing was scheduled to address the future course of the matter.

The final orders of the court were to set aside certain orders of the Tribunal, affirm the agency's determination in relation to some documents, grant leave to extend the appeal to the merits, and arrange a directions hearing for the remaining documents. This outcome highlights the importance of correctly interpreting the Freedom of Information Act and the applicable exemptions in disputes over document disclosure.

Orders

Orders of the court

1. Appeal allowed. 2. Orders 2 and 3 of the Tribunal set aside, as they relate to Documents 2, 5, 16, 23, 24 and 27. 3. Order 4 vacated. 4. Leave granted to extend the appeal to the merits. 5. Determination under review affirmed as to Documents 23, 24 and 27. 6. Registrar to arrange a directions hearing attended by the review applicant and the first and second respondents to the review application for the purpose of making directions in relation to the future course of this matter as it relates to the agency's determination in relation to Documents 2, 5 and 16.

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:	IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79
PARTIES:	APPELLANTS (1) Independent Pricing and Regulatory Tribunal (2) Premier of New South Wales RESPONDENTS (1) Services Sydney Pty Ltd (2) Sydney Water Corporation
FILE NUMBER:	089036
HEARING DATES:	18 July 2008
DATE OF DECISION:	5 December 2008
BEFORE:	O'Connor K - DCJ (President); Pearson L - Judicial Member; Blake C - Non-Judicial Member
CATCHWORDS:	Freedom of Information - Restricted Documents - Reasonable Grounds - Nature of Jurisdiction of Tribunal - section 57 - Relationship with section 63. - Freedom of Information - Business Affairs, Internal Working Documents, Confidential Information Exemptions - Public Interest - Whether Information can be obtained by Use of Powers of Compulsion - Relevance.
DECISION UNDER APPEAL:	Services Sydney Pty Ltd v Independent Pricing and Regulatory Tribunal and Anor [2008] NSWADT 100
FILE NUMBER UNDER APPEAL:	073180
DATE OF DECISION UNDER APPEAL:	04/03/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 Therapeutic Goods Act 1966 (Cth)
CASES CITED:	Attorney General’s Department v Cockcroft (1986) 64 ALR 97 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bag and Jute Co (Tw’th) Pty Ltd and Collector of Customs [1993] AATA 350; (1993) 18 AAR 477 BY -v- Director General, Attorney General's Department [2002] NSWADT 79 Chief Executive Officer, State Rail Authority v Woods (No. 2) (GD) [2003] NSWADTAP 39 Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Craig v South Australia (1995) 184 CLR 163 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Harshaw and Australian Competition and Consumer Commission [2007] AATA (26 October 2007) McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Neary v State Rail Authority [1999] NSWADT 107 Re Organon (Australia) Pty Ltd and Department of Community Services and Health: Public Interest Advocacy Centre (1987) 13 ALD 588 Services Sydney Pty Ltd v Independent Pricing and Regulatory Tribunal and anor [2008] NSWADT 100 University of New South Wales v McGuirk [2006] NSWSC 1362
REPRESENTATION:	FIRST AND SECOND APPELLANTS M Izzo, counsel/G Shirm, Crown Solicitor's Office FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance
ORDERS:	1. Appeal allowed. 2. Orders 2 and 3 of the Tribunal set aside, as they relate to Documents 2, 5, 16, 23, 24 and 27. 3. Order 4 vacated. 4. Leave granted to extend the appeal to the merits. 5. Determination under review affirmed as to Documents 23, 24 and 27. 6. Registrar to arrange a directions hearing attended by the review applicant and the first and second respondents to the review application for the purpose of making directions in relation to the future course of this matter as it relates to the agency’s determination in relation to Documents 2, 5 and 16.