Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Irvine v Temora Shire Council [2024] NSWCATAD 201 Hearing dates: 24 May 2024 Date of orders: 24 July 2024 Decision date: 24 July 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: M Deane, Senior Member Decision: 1. The decision made by the Respondent on 13 February 2024 is set aside.
2. In substitution for that decision, access to the information sought by the Applicant in his access application of 3 November 2023 must be provided by the Respondent within 30 calendar days of the date of this decision.
Catchwords: ADMINISTRATIVE LAW – Government information – application for access refused by Respondent –change of circumstances
ADMINISTRATIVE LAW – Government information – circumstances do not exist for referral to Information Commissioner under s 111
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Cases Cited: Dibb v Transport for NSW (No 2) [2022] NSWCATAP 89
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): 2023/00451283 Publication restriction: nil
REASONS FOR DECISION
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This is an application for administrative review of a decision of the Temora Shire Council (the Respondent) concerning an application for access to information made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
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Initially the application was determined on the basis that the information was not held. Subsequently a new decision was made to refuse to provide access to the information. By the time of the Tribunal’s hearing on 24 April 2024, the Respondent no longer opposed the disclosure of the information sought due to changes in circumstances.
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The parties did not enter into consent orders by which the document would be released and the application withdrawn because Councillor Irvine (the Applicant) wished to make submissions to the Tribunal regarding s 111 GIPA Act.
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For the reasons set out below, under s 63(3)(c) of the Administrative Decision Review Act 1998 (the ADR Act) I have decided to set aside the decision made by the Respondent on 13 February 2024 and make a decision in substitution for that decision under s 58(1)(a) GIPA Act to provide access to the information.
Background
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On 3 November 2023 the Applicant made an application for access to Temora Shire Council (the Respondent) under the GIPA Act. The Applicant requested a copy of the “Police report provided to Temora Shire Council which related to a stock matter reported to the November 2022 meeting of Temora Shire Council.” That document is referred to in this decision as “the Police Report.”
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On 1 December 2023 a delegate authorised by the principal officer of the Respondent to decide the access application (the delegate) made a decision under s 58(1)(b) of the GIPA Act that the information was not held by the agency.
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On…
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- Case
- [2024] NSWCATAD 201
- Decision Date
CaseChat Overview and Summary
The key legal issues for the court to determine were whether the council’s refusal to provide access to the requested information was justified under the Act, and whether the circumstances that formed the basis of the refusal were valid. In particular, the court had to examine whether the refusal was consistent with the statutory obligations to facilitate public access to government information, and whether there were any procedural errors in the council’s decision-making process.
In examining these issues, the court considered the statutory framework of the Government Information (Public Access) Act 2009 (NSW), which mandates that access to government information be provided unless specific exceptions apply. The court found that the council had not properly identified any exceptions that warranted the refusal of access. Furthermore, the court held that the circumstances relied upon by the council did not meet the threshold for referral to the Information Commissioner under section 111 of the Act. Consequently, the court determined that the council's decision to deny access was not supported by the law.
The court set aside the decision of the council and ordered that access to the information sought by Irvine must be provided within 30 days from the date of the decision. The court found that the refusal to grant access was not in accordance with the statutory requirements and that the statutory rights of the Applicant were not appropriately considered by the council.
Orders
Orders of the court
1. The decision made by the Respondent on 13 February 2024 is set aside.
2. In substitution for that decision, access to the information sought by the Applicant in his access application of 3 November 2023 must be provided by the Respondent within 30 calendar days of the date of this decision.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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