Irvine v Temora Shire Council - [2024] NSWCATAD 202

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Irvine v Temora Shire Council [2024] NSWCATAD 202
Hearing dates: 24 May 2024
Date of orders: 25 July 2024
Decision date: 25 July 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Deane, Senior Member
Decision:
1. Under section 63 (3)(d) of the Administrative Review Act 1997, the decision under review is set aside and remitted for reconsideration in accordance with the recommendations set out in paragraph [103] to this decision
2. Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) of these proceedings is prohibited
3. Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the evidence in Doc R3 and Doc R8 of these proceedings is prohibited.
4. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant of the evidence in Doc R3 and Doc R8 and the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) in these proceedings and paragraphs [48], [49] and [73] of this decision is prohibited.

Catchwords:
ADMINISTRATIVE LAW — Reviewability — Justiciability — Status of decision-maker – where Respondent requested assistance from another Council in conducting internal review without instrument of delegation – purported internal review invalid – original decision deemed to have been made again and becomes the decision under review
ADMINISTRATIVE LAW – Government information – public interest considerations against disclosure – reveal an individual’s personal information – contravene an information protection principle under the Privacy and Personal Information Protection Act 1998
ADMINISTRATIVE LAW – Government information – whether Tribunal should substitute decision where individual not validly notified of decision to release redacted version

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:
Commissioner of Police (NSW) v Field [2016] NSWCATAP 59
Davis v Secretary, Department of Education [2022] NSWCATAD 55
Dennis v Department of Planning, Industry and Environment [2021] NSWCATAD 377
Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101
Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277
Snape v Commissioner of Police No 2 [2022] NSWCATAP 244
Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248
Transport for NSW v Searle [2018] NSWCATAP 93

Texts Cited:
nil

Category: Principal judgment
Parties: Anthony Irvine (Applicant)
Temora Shire Council (Respondent)
Representation: Solicitors:
Applicant (self-represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2023/00454688
Publication restriction: 1. Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May…

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 202
Decision Date: 25 July 2024

CaseChat Overview and Summary

Irvine sought review of a decision by Temora Shire Council, which had requested the assistance of another council in conducting an internal review without a valid instrument of delegation. The court was required to determine whether the internal review was valid and if the original decision was correctly deemed to have been made again, thereby becoming the decision under review. Additionally, the court had to consider the disclosure of personal information under the Privacy and Personal Information Protection Act 1998 and whether the Tribunal should substitute the decision where the individual was not validly notified of the decision to release a redacted version.

The court found that the request for assistance from another council was not valid due to the absence of a proper instrument of delegation, rendering the internal review invalid. Consequently, the original decision was deemed to have been made again and thus became the decision under review. Furthermore, the court determined that the release of the personal information contravened the information protection principle under the Privacy and Personal Information Protection Act 1998. As for the notification issue, the court ruled that the Tribunal should not substitute the decision since the individual was not validly notified of the decision to release the redacted version.

The decision under review was set aside and remitted for reconsideration in accordance with the recommendations set out in paragraph [103] of the decision. Publication of the sound recording and transcript of the closed hearing, as well as specific evidence, was prohibited under the Civil and Administrative Tribunal Act 2013 (NSW). Additionally, disclosure to the applicant of certain evidence and parts of the decision was also prohibited.

Orders

Orders of the court

1. Under section 63 (3)(d) of the Administrative Review Act 1997, the decision under review is set aside and remitted for reconsideration in accordance with the recommendations set out in paragraph [103] to this decision

2. Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) of these proceedings is prohibited

3. Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the evidence in Doc R3 and Doc R8 of these proceedings is prohibited.

4. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant of the evidence in Doc R3 and Doc R8 and the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) in these proceedings and paragraphs [48], [49] and [73] of this decision is prohibited.

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.

Medium Neutral Citation:	Irvine v Temora Shire Council [2024] NSWCATAD 202
Hearing dates:	24 May 2024
Date of orders:	25 July 2024
Decision date:	25 July 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Deane, Senior Member
Decision:	1. Under section 63 (3)(d) of the Administrative Review Act 1997, the decision under review is set aside and remitted for reconsideration in accordance with the recommendations set out in paragraph [103] to this decision 2. Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) of these proceedings is prohibited 3. Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the evidence in Doc R3 and Doc R8 of these proceedings is prohibited. 4. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant of the evidence in Doc R3 and Doc R8 and the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) in these proceedings and paragraphs [48], [49] and [73] of this decision is prohibited.
Catchwords:	ADMINISTRATIVE LAW — Reviewability — Justiciability — Status of decision-maker – where Respondent requested assistance from another Council in conducting internal review without instrument of delegation – purported internal review invalid – original decision deemed to have been made again and becomes the decision under review ADMINISTRATIVE LAW – Government information – public interest considerations against disclosure – reveal an individual’s personal information – contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 ADMINISTRATIVE LAW – Government information – whether Tribunal should substitute decision where individual not validly notified of decision to release redacted version
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	Commissioner of Police (NSW) v Field [2016] NSWCATAP 59 Davis v Secretary, Department of Education [2022] NSWCATAD 55 Dennis v Department of Planning, Industry and Environment [2021] NSWCATAD 377 Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277 Snape v Commissioner of Police No 2 [2022] NSWCATAP 244 Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248 Transport for NSW v Searle [2018] NSWCATAP 93
Texts Cited:	nil
Category:	Principal judgment
Parties:	Anthony Irvine (Applicant) Temora Shire Council (Respondent)
Representation:	Solicitors: Applicant (self-represented) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2023/00454688
Publication restriction:	1. Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May…