Jackson v Commissioner for Fair Trading - [2024] NSWCATAD 127

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Jackson v Commissioner for Fair Trading [2024] NSWCATAD 127
Hearing dates: 17 July 2023, 10 October 2023, 20 November 2023
Date of orders: 15 May 2024
Decision date: 15 May 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
Decision:
(1) The Respondent’s decision of 5 August 2022 is affirmed.
(2) The Applicant’s application for review is otherwise dismissed.

Catchwords:
ADMINISTRATIVE LAW – administrative review - government information – legal professional privilege - waiver of privilege - conclusive presumption against disclosure

Legislation Cited:
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Evidence Act 1995
Government Information (Public Access) Act 2009

Cases Cited:
Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098
Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357
Public Service Assn v Premier’s Department [2002] NSWADT 277
Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Texts Cited:
None cited

Category: Principal judgment
Parties: Garth Brenton Jackson (Applicant)
Commissioner for Fair Trading (Respondent)
Representation:
Counsel:
N Case (Respondent)
Solicitors:
Applicant (Self-Represented)
Department of Customer Service (Respondent)

File Number(s): 2022/00290366
Publication restriction: Nil

REASONS FOR DECISION

On 14 April 2022, Garth Brenton Jackson (the Applicant) made an application to the Commissioner for Fair Trading (the Respondent) under the Government Information (Public Access) Act 2009 (the GIPA Act) for access to the following information:

Copy of all Information regarding the DFTs determination that clause 2.3.1 of AS 1926.1 (2012) has application to a boundary barrier.

Copy of all information relied upon by the DFT to make the determination that clause 2.3.1 of AS 1926.1(2012) does apply to a boundary barrier.

A copy of all information considered by the DFT to make the determination that clause 2.3.1 of AS 1926.1(2012) does apply to a boundary barrier.

A copy of all information regarding Standards Australia's ruling issued in November 2021 with respect to clause 2.3.1 of AS 1926.1(2012) not applying to a boundary barrier.

A copy of all information, documents or submissions received by the DFT with regards to the application of clause 2.3.1 of AS 1916.1(2012) to a boundary barrier.

A copy of any documentation disputing the application of clause 2.3.1 of AS 1926.1 (2012) to a boundary barrier.

A copy of all internal and external communications, meetings, etc regarding the application of clause 2.3.1 of AS 1926.1(2012) to a boundary barrier.

A copy of all Cert Alerts and website releases (including variations to) regarding the application of clause 2.3.1 of AS 1926.1(2012) to a boundary barrier.

A copy of approved training materials under the former El Certification Course and the now Swimming Pool Inspector course with respect the application of clause 2.3.1 of AS 1926.1(2012) to a boundary barrier.

A copy of all approved continuing professional development education material regarding the application of clause 2.3.1 of AS 1926.1(2012) to boundary barriers.

A copy of all legal advice received by…

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.

Continue reading Jackson v Commissioner for Fair Trading

Details

AGLC: Jackson v Commissioner for Fair Trading [2024] NSWCATAD 127
Case: [2024] NSWCATAD 127
Decision Date: 15 May 2024

CaseChat Overview and Summary

In the matter of Jackson v Commissioner for Fair Trading, the Applicant, Jackson, sought review of a decision made by the Respondent, the Commissioner for Fair Trading, under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The dispute arose from the Commissioner’s refusal to provide certain documents to Jackson, on the basis that the documents were protected by legal professional privilege and a conclusive presumption against disclosure. Jackson argued that the documents should be disclosed as they were relevant to an investigation into an alleged contravention of the Australian Consumer Law.

The primary legal issue before the court was whether the Commissioner was correct in refusing to disclose the documents on the grounds of legal professional privilege and the conclusive presumption against disclosure. The court was required to consider whether the documents were indeed privileged, and if so, whether the privilege was waived or if there existed an exception to the conclusive presumption against disclosure.

The court found that the documents were indeed protected by legal professional privilege, as they were prepared by legal professionals for the purpose of providing legal advice. The court further determined that there was no evidence of a waiver of privilege. Additionally, the court found that none of the exceptions to the conclusive presumption against disclosure applied in this case. Consequently, the court held that the Commissioner’s decision was correct, and the application for review was dismissed. The decision of the Commissioner was affirmed, and no order for disclosure was made in favour of the Applicant.

Orders

Orders of the court

(1) The Respondent’s decision of 5 August 2022 is affirmed.

(2) The Applicant’s application for review is otherwise dismissed.

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

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Medium Neutral Citation:	Jackson v Commissioner for Fair Trading [2024] NSWCATAD 127
Hearing dates:	17 July 2023, 10 October 2023, 20 November 2023
Date of orders:	15 May 2024
Decision date:	15 May 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1) The Respondent’s decision of 5 August 2022 is affirmed. (2) The Applicant’s application for review is otherwise dismissed.
Catchwords:	ADMINISTRATIVE LAW – administrative review - government information – legal professional privilege - waiver of privilege - conclusive presumption against disclosure
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Government Information (Public Access) Act 2009
Cases Cited:	Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 Public Service Assn v Premier’s Department [2002] NSWADT 277 Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Garth Brenton Jackson (Applicant) Commissioner for Fair Trading (Respondent)
Representation:	Counsel: N Case (Respondent) Solicitors: Applicant (Self-Represented) Department of Customer Service (Respondent)
File Number(s):	2022/00290366
Publication restriction:	Nil