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Lesslie v Lithgow City Council

Lesslie v Lithgow City Council

Case [2023] NSWCATAD 306 5 December 2023

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Lesslie v Lithgow City Council [2023] NSWCATAD 306
Hearing dates: 13 November 2023
Date of orders: 05 December 2023
Decision date: 05 December 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:
The decision under review is affirmed.

Catchwords:
ADMINISTRATIVE LAW – administrative review – Government information - whether overriding public interest against disclosure – personal information of a third party

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Local Government Act 1993 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)
State Records Act 1998 (NSW)

Cases Cited:
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46
Leech v Sydney Water Corporation [2010] NSWADT 298
Meldru v Wollondilly Shire Council [2017] NSWCATAD 292
Neary v State Rail Authority [1999] NSWADT 107
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111
Taylor v Destination NSW [2017] NSWCATAD 272
YG & GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:
None cited

Category: Principal judgment
Parties: Arthur Lesslie (Applicant)
Lithgow City Council (Respondent)
Representation: Applicant (Self-Represented)
Lithgow City Council (Respondent)

File Number(s): 2023/00229365
Publication restriction: Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent (Lithgow City Council) is prohibited.

REASONS FOR DECISION

Background

These proceedings concern a request that Arthur Lesslie (the applicant) made to Lithgow City Council (the respondent) on 24 May 2023 for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act), in the following terms:

The resignation letter and/or email, from former Councillor Deanna Goodsell to Lithgow City Council’s General Manager or any Officer of Lithgow City Council.
Any letters and/or emails from former Councillor Deanna Goodsell to Lithgow City Council’s General Manager or any Officer of Lithgow City Council between the 11 May 2023 and the 20 May 2023 which asks for advice or which relates to, or discusses or canvasses this resignation.
Any letters and/or emails from Lithgow City Council’s General Manager or any Officer of Lithgow City Council to Deanna Goodsell between the 11 May 2023 and the 20 May 2023.
Any correspondence between Lithgow City Council’s General Manager and Lithgow City Council’s Mayor between the 11 May 2023 and the 20 May 2023 which relates to, or discusses or canvasses this resignation.

On 20 June 2023, the respondent decided to provide access to part of the information sought in item the GIPA request (s 58(1)(a) of the GIPA Act), but to refuse to provide access to the information that was subject to an overriding public interest against its disclosure (s 58(1)(d) 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.

Continue reading Lesslie v Lithgow City Council

Details

AGLC: Lesslie v Lithgow City Council [2023] NSWCATAD 306
Case: [2023] NSWCATAD 306
Decision Date: 05 December 2023

CaseChat Overview and Summary

Lesslie v Lithgow City Council involved the plaintiff, Lesslie, and the defendant, Lithgow City Council. Lesslie sought information from the Council under the Government Information (Public Access) Act 2009 (NSW). The Council refused to release certain information, claiming it was exempt under section 22 of the Act, which allows for exemptions on the basis of an overriding public interest against disclosure. Lesslie sought judicial review of the Council's decision in the Land and Environment Court of New South Wales.

The court was required to determine whether the Council's refusal to disclose the information was justified under the Act. Specifically, the court needed to assess whether the exemption based on an overriding public interest against disclosure was applicable, and if so, whether the Council had properly exercised its discretion in making that determination. The court also needed to consider the extent to which the public interest in disclosure outweighed any potential harm to the individuals whose information was being withheld.

The court found that the exemption under section 22 of the Act was applicable, as the information sought related to personal information of a third party, and its disclosure would have been contrary to the public interest. The court noted that the protection of personal information is a significant public interest, and that the potential harm to the individuals concerned was substantial. The court also found that the Council had properly exercised its discretion in refusing to disclose the information. The court was satisfied that the Council had considered all relevant factors, including the public interest in disclosure, and had made a decision that was reasonable and in accordance with the law.

The decision under review is affirmed. The Council's refusal to disclose the information is upheld, and Lesslie's application for judicial review is dismissed.

Orders

Orders of the court

The decision under review is affirmed.

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.

Citations

AGLC Citation

Lesslie v Lithgow City Council [2023] NSWCATAD 306

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 12 of 12 shown

Fisher v Goulburn Mulwaree Council
[2019] NSWCATAD 34 Para 71

…agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] ( Fisher ); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] ( Meldru ).…
Meldru v Wollondilly Shire Council
[2017] NSWCATAD 292 Para 71

…grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] ( Fisher ); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] ( Meldru ).…
Taylor v Destination NSW
[2017] NSWCATAD 272 Para 65

…weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an “…
Hall v Department of Premier and Cabinet (NSW)
[2012] NSWADT 46 Para 67

…his calls for an objective test to be made from the point of a view of a " reasonable " administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a " mere risk or chance ": Flack (at…
Flack v Commissioner of Police, New South Wales Police
[2011] NSWADT 286 Para 64

…In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 ( Flack ) and Hurst , the Tribunal confirmed that the " public interest test " under s 13 requires agencies to start with the presumption in favour of disclosure of information and:…
Leech v Sydney Water Corporation
[2010] NSWADT 298 Para 67

…a question of fact based on real and substantial grounds and not just a " mere risk or chance ": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] ( Leech ).…
Australian Broadcasting Corporation v O'Neill
[2006] HCA 46

…2002 (NSW) Local Government Act 1993 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) State Records Act 1998 (NSW) Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hall v Department…
McKinnon v Secretary, Department of Treasury
[2006] HCA 45 Para 67

…osure upon which it relies, that disclosure could reasonably be expected to have the nominated effect ": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a " reasonable " administrator: Hall v De…
YG & GG v Minister for Community Services
[2002] NSWCA 247 Para 57

…ich the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].…
Neary v State Rail Authority
[1999] NSWADT 107 Para 89

…ased on real and substantial grounds and not something that is purely speculative, fanciful, imaginary or contrived: Neary v State Rail Authority [1999] NSWADT 107, at [35]; Searle Australia Pty Ltd v PIAC [1992] FCA 241, at [43]; Leech at [25].…
Searle Australia Pty Ltd v Public Interest Advocacy Centre
[1992] FCA 317

…lly Shire Council [2017] NSWCATAD 292 Neary v State Rail Authority [1999] NSWADT 107 Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 Taylor v Destination NSW [2017] NSWCATAD 272 YG & GG v Minister for Community Services [2002] NSWCA 247 Texts Cited: None cited Category: Principal judgmen…
Searle Australia Pty Ltd v PIAC
[1992] FCA 241 Para 89

…is purely speculative, fanciful, imaginary or contrived: Neary v State Rail Authority [1999] NSWADT 107, at [35]; Searle Australia Pty Ltd v PIAC [1992] FCA 241, at [43]; Leech at [25].…

Legislation cited in this decision · 7

Government Information (Public Access) Act 2009 (NSW)
2 mentions (from Para 1)
Administrative Decisions Review Act 1998 (NSW)
1 mention
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 31)
Health Records and Information Privacy Act 2002 (NSW)
1 mention
Local Government Act 1993 (TAS)
1 mention (from Para 21)
Privacy and Personal Information Protection Act 1998 (NSW)
1 mention (from Para 47)
State Records Act 1998 (NSW)
1 mention

Medium Neutral Citation:	Lesslie v Lithgow City Council [2023] NSWCATAD 306
Hearing dates:	13 November 2023
Date of orders:	05 December 2023
Decision date:	05 December 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW – administrative review – Government information - whether overriding public interest against disclosure – personal information of a third party
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Health Records and Information Privacy Act 2002 (NSW) Local Government Act 1993 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) State Records Act 1998 (NSW)
Cases Cited:	Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Leech v Sydney Water Corporation [2010] NSWADT 298 Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 Neary v State Rail Authority [1999] NSWADT 107 Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 Taylor v Destination NSW [2017] NSWCATAD 272 YG & GG v Minister for Community Services [2002] NSWCA 247
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Arthur Lesslie (Applicant) Lithgow City Council (Respondent)
Representation:	Applicant (Self-Represented) Lithgow City Council (Respondent)
File Number(s):	2023/00229365
Publication restriction:	Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent (Lithgow City Council) is prohibited.