Jeray v Blue Mountains City Council - [2021] NSWCATAD 67

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Jeray v Blue Mountains City Council [2021] NSWCATAD 67
Hearing dates: On the papers
Date of orders: 17 March 2021
Decision date: 17 March 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: R L Hamilton SC, Senior Member
Decision:
(1) The decision of the agency on the original application is affirmed.
(2) The matter is remitted to the respondent to consider and decide within 28 days of publication of these reasons whether to provide the applicant with the list of information prepared by it in response to the original application.

Catchwords:
GOVERNMENT INFORMATION – refusal by agency to deal with application as valid – sec 41(1)(e) GIPA Act- meaning of ‘reasonably necessary information’ in application

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

Cases Cited:
Department of Communities and Justice v Zonnevylle 2020 NSW CATAP 126 and [2019] NSWCAT 215 (first instance)
Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341.

Texts Cited:
None cited

Category: Principal judgment
Parties: Ivan Jeray (Applicant)
Blue Mountains City Council (Respondent)
Representation: Solicitors:
Applicant (Self Represented)
Marsdens Law Group (Respondent)

File Number(s): 2020/00300586
Publication restriction: Nil

REASONS FOR DECISION

This matter concerns an application under the Government Information (Public Access) Act 2009 (GIPA Act) which relates the “North Face 100/Ultra Trail event” which has been an annual Activity in the local government area controlled by the respondent Council (agency). The agency has refused to deal with the application on the basis that it is invalid under section 41 (1) (e) of the GIPA Act because it is considered there is insufficient information in it for the agency to identify the records being sought. The parties have agreed that the matter is suitable to be dealt with on the papers.
The terms of the application were as follows “All records concerning the North Face 100/Ultra Trail event. If there are many records please provide me with an index of records held so that I may select the documents required”.
The original application was rejected on the above-mentioned ground shortly after it was lodged. The applicant was advised of the reasons (sec 52 GIPA Act), and invited to amend his application so that it could become valid, together with information required to assist Council in finding the information. Shortly afterwards the applicant slightly amended by substituting in his request “a list” of documents for “an index”.
The applicant declined the agency’s request for further information and sought that the original decision be internally reviewed. He then sought an external review of the decision by the Information and Privacy Commission. This was done by the Information and Privacy Commissioner which upheld the original decision
The matter is now before the Tribunal for administrative review. The issue before me is whether the Council was correct to decide that the GIPA application was not valid by reason of provisions of sec 41(1)(e) of…

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: [2021] NSWCATAD 67
Decision Date: 17 March 2021

CaseChat Overview and Summary

The applicant, Jeray, sought access to government information held by the Blue Mountains City Council, the respondent, under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). Jeray’s application was refused on the basis that it was invalid because it did not include reasonably necessary information. Jeray appealed this decision to the Land and Environment Court of New South Wales. The court was required to decide whether the Council’s refusal to deal with Jeray’s application was valid under section 41(1)(e) of the GIPA Act and to define the term ‘reasonably necessary information’ in the context of a GIPA application.

The court found that the term ‘reasonably necessary information’ in section 41(1)(e) of the GIPA Act refers to information that an agency requires in order to reasonably determine whether an application is valid. The court held that the Council’s refusal to deal with Jeray’s application was valid because Jeray’s application did not include information reasonably necessary for the Council to determine whether the application was valid. However, the court found that the Council had not adequately explained to Jeray the information it considered reasonably necessary. The court also noted that the Council had prepared a list of information in response to Jeray’s application, and it was not apparent that Jeray had been given the opportunity to provide this information. The court therefore held that the matter should be remitted to the Council to consider and decide within 28 days of the publication of these reasons whether to provide Jeray with the list of information it had prepared in response to the original application.

The court’s decision affirmed the Council’s refusal to deal with Jeray’s application as valid. However, it also directed the Council to reconsider its decision in light of the court’s findings and to provide Jeray with an opportunity to provide the reasonably necessary information. The court did not order the Council to provide Jeray with the information itself, but rather left it to the Council to decide whether to provide the information within 28 days of the publication of these reasons. This outcome ensures that Jeray has an opportunity to provide the reasonably necessary information, while also upholding the Council’s decision that Jeray’s original application was invalid.

Orders

Orders of the court

(1) The decision of the agency on the original application is affirmed.

(2) The matter is remitted to the respondent to consider and decide within 28 days of publication of these reasons whether to provide the applicant with the list of information prepared by it in response to the original application.

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:	Jeray v Blue Mountains City Council [2021] NSWCATAD 67
Hearing dates:	On the papers
Date of orders:	17 March 2021
Decision date:	17 March 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R L Hamilton SC, Senior Member
Decision:	(1) The decision of the agency on the original application is affirmed. (2) The matter is remitted to the respondent to consider and decide within 28 days of publication of these reasons whether to provide the applicant with the list of information prepared by it in response to the original application.
Catchwords:	GOVERNMENT INFORMATION – refusal by agency to deal with application as valid – sec 41(1)(e) GIPA Act- meaning of ‘reasonably necessary information’ in application
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009
Cases Cited:	Department of Communities and Justice v Zonnevylle 2020 NSW CATAP 126 and [2019] NSWCAT 215 (first instance) Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341.
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Ivan Jeray (Applicant) Blue Mountains City Council (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Marsdens Law Group (Respondent)
File Number(s):	2020/00300586
Publication restriction:	Nil