Male v Kempsey Shire Council

[2022] NSWCATAD 39

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Male v Kempsey Shire Council [2022] NSWCATAD 39

Hearing dates:

31 May 2021 with a Statutory Declaration provided after the hearing by the respondent (with the consent of the applicant) to the Tribunal on 5 July 2021 for its consideration and correspondence from the parties on 1 February 2022 concerning the transcript of proceedings.

Date of orders:

04 February 2022

Decision date:

04 February 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Starke, Senior Member

Decision:

(1) The decision of the respondent dated 6 November 2020 in file number 2020/351918 is varied to the effect that the test results for materials as contained in the tender submission of Pacific Blue Metal Pty Ltd in response to the respondent’s request for tender TQE 19/16 are to be released within 35 days of the publication of these reasons subject to the provision of notice of that course of action to Pacific Blue Metal Pty Ltd and the required consultation under s 54(6) of the Government Information (Public Access) Act 2009 (NSW).

(2) The decision of the respondent dated 7 December 2020 in file number 2020/363179 is affirmed.

(3) The decision of the respondent dated 7 December 2020 in file number 2020/363191 is affirmed

Catchwords:

ADMINISTRATIVE LAW — Public access to government information — Request for information — Balancing public interest considerations — Prejudice the supply of confidential information that facilitates the effective exercise of an agency’s functions — found an action against an agency for breach of confidence — reveal an individual’s personal information — reveal commercial-in-confidence provisions of a government contract — diminish the competitive commercial value of any information to any person — prejudice any person’s legitimate business, commercial, professional or financial interests — Balancing public interest considerations — Third party objections

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Local Government Act 1993 (NSW)

Cases Cited:

AFW v WorkCover Authority of NSW [2013] NSWADT 51

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180

Australian Vaccination Network v Dept of Finance & Services [2013] NSWADT 60

Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252

Collins v Department of Finance, Service and Innovation [2018] NSWCATAD 60

Commissioner of Police v Danis [2017] NSWCATAP 7

Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19

Crewdson v Central Sydney Area Health Service [2002] NSWCA 345

Denyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 160

Director General, Department of Education & Training v Mullett (GD) [2002] NSWADTAP 13

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18

Hopson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 379

Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 76 FCR 151; [1997] ALR 1

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 198

Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550

Meacham v Commissioner of Police [2020] NSWCATAP 107

Media Research Group Pty Ltd v Department of Premier and Cabinet [2011] NSWADTAP 7

Medlyn v Comissioner of Police [2020] NSWCATAD 125

Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71

Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41

Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195

Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

Page v Commissioner of Police [2020] NSWCATAD 163

Randwick City Council v Nancor Trading Co Pty Ltd [2002] NSWCA 108

Raven v University of Sydney [2015] NSWCATAD 104

Ryder v Booth [1985] VR 870

Solomon V Corrective Services NSW [2016] NSWCATAD 257

South Coast Hunters Club v Eurobodalla Shire Council [2018] NSWCATAD 42

Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93

Taylor v Office of Destination NSW [2018] NSWCATAD 195

Thomson v Commissioner of Police [2021] NSWCATAD 53

Transport for NSW v Searle [2018] NSWCATAP 93

Walker v Gosford City Council [2016] NSWCATAD 207

Walker v Northern Beaches Council [2021] NSWCATAD 251

YG and GG v Minister for Community Services [2002] NSWCA 247

Zonneyville v NSW Department of finance and Services [2015] NSWCATAD 175

Category:

Principal judgment

Parties:

Peter Male (Applicant)
Kempsey Shire Council (Respondent)

Representation:

Counsel:
Bryce Douglas-Baker (Applicant)

Solicitors:
Balmain Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

Also heard:
Hurd Haulage Pty Ltd pursuant to s 104(3) of the Government Information (Public Access) Act 2009

File Number(s):

2020/351918, 2020/363179, 2020/363191

Publication restriction:

Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the transcript record of that part of the hearing on 31 May 2021 held in private pursuant to an order under s 49(2) of the Act to anyone other than the respondent or its legal representative, is prohibited.

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the evidence or submissions given before the tribunal during that part of the hearing on 31 May 2021 held in private pursuant to an order under s 49(2) of the Act or of matters contained in documents lodged with the Tribunal by the respondent on a confidential basis to anyone other than the respondent or its legal representative, is prohibited.

Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the evidence given before the Tribunal during that part of the hearing on 31 May 2021 held in private pursuant to an order under s 49(2) of the Act or of the contents of documents lodged with the Tribunal by the respondent on a confidential basis to anyone other than the respondent or its legal representative, is prohibited.

REASONS FOR DECISION

1. Peter Male applied to the Tribunal for administrative review of decisions of the Kempsey Sire Council to withhold, or to release in a redacted form, information in response to the applicant’s three access applications under the Government Information (Public Access) Act 2009 (NSW) (the Act or the GIPA Act). With respect to each access application, the decisions were made by the respondent on the following dates:

• Notice of Decision - Internal review, 6 November 2020 (File number 2020/351918) (GIPA 2020/37 Decision);

• Notice of Decision - Internal review, 7 December 2020 (File number 2020/363179) (GIPA 2020/39 Decision);

• Notice of Decision – Internal Review, 7 December 2020 (File number 2020/363191) (GIPA 2020/42 Decision).

Relevant Background

2. In respect of each access application, the applicant sought access to three categories of documents:

1. tender submissions received by the Council for the supply and delivery of gravel or pavement materials;

2. documents relating to the evaluation and determination of those tender submissions; and

3. signed contracts between the Council and successful tenderers.

GIPA 2020/37 in relation to Tender TQE 19/16 (NCAT File number 2020/351918)

3. The Council’s GIPA 2020/37 Decision concerned the applicant’s access application for information relating to tender TQE 19/16 for the supply and delivery of pavement materials to the Council (at various locations within the Council’s local government area, also referred to as the Shire) for the period from 30 September 2019 to 30 June 2021. The tender closed on 3 September 2019.

4. The tender was a “Schedule of Rates tender”, as described in the following terms:

“This is a Schedule of Rates tender and rates must be submitted on the basis of price/tonne ex-Quarry and a delivery charge based on $/road-km from the quarry to the various project sites via an agreed route.”

5. Tenderers were asked to provide a rate per tonne across 11 categories and grades of various materials (such as gravel, crusher dust, sand, rock and aggregate), with a charge per tonne/km for delivery by either rigid truck or truck and dog.

6. Mr Male’s application sought access to the following information:

“All tender submissions lodge (sic) for tender TQE 19/16 including all submissions considered by Council including all internal records relating to the evaluation of tender submissions and the determination thereof. All signed contracts entered into by Council in respect to the awarding of the tender to successful tenders.”

7. In the context of requesting a reduction in processing charges, Mr Male’s access application specified “value for money” as a benefit to the public.

8. The Council’s decision dated 14 October 2020 provided partial access to the information requested, which did not include any of the tender submissions received. The Council consulted with the third party tenderers and received an objection from Bayval Pty Ltd (Bayval) to the release of its tender submission.

9. The applicant requested an internal review of the Council’s decision. Under Notice of Decision (Internal Review) dated 6 November 2020, the Council decided to release some documents and withhold others. The Schedule of Documents annexed to the GIPA 2020/37 Decision lists the documents that were released or released in redacted form, and the documents that were withheld.

Documents released or released in redacted form under GIPA 2020/37 Decision

10. The documents that were released to Mr Male are broadly described below:

1. Tender Evaluation and Probity Plan issued on 7 August 2019 relevant to the Council’s Tender TQE 19/16;

2. four Conflict of Interest Declarations signed by the Tender Evaluation team and the Council’s appointed Probity Officer;

3. Tender Evaluation Report dated 28 October 2019 recommending acceptance of all 7 tenderers to form a panel contract based on lowest price for each individual materials supplied when required specific to projects;

4. a report dated 17 December 2019 of Mr Dale Smith, Council’s Manager Infrastructure Delivery, submitted to the Council on a confidential basis, referring to the Tender Evaluation Panel’s recommendation which advised that all 7 tenders were deemed to be compliant and recommending that all 7 tenderers be appointed as suppliers to a panel contract arrangement to be in place for a period of 3 years (Note: This term is inconsistent with the proposed term as specified in TQE 19/16);

5. Roads and Maritime Services QA Specification 3051 (RMS 3051) (Edition 7 as at August 2018) for granular pavement base and subbase materials, developed for use with roadworks and bridgeworks contracts let by RMS or by local Councils in NSW;

6. RMS QA Specification M220 (Edition 3 as at November 2012) for formation grading of unsealed roads, also developed for use with roadworks and bridgeworks contracts let by RMS or by local Councils in NSW;

7. A copy of Tender TQE 19/16 for a term from 30 September 2019 to 30 June 2021;

8. Evaluation Scorecard with tenderers’ pricing redacted.

Documents withheld under GIPA 2020/37 Decision

11. The Council withheld the 7 tender submissions received in response to the tender and clarification correspondence between the Council and a prospective tenderer:

1. Pacific Blue Metal Pty Ltd (PBM);

2. Sheridans Hard Rock Quarry Pty Ltd (Sheridans);

3. Bayval;

4. Arnway Pty Ltd (Arnway);

5. Ball’s Earthmoving Pty Ltd (Ball’s Earthmoving);

6. Thurgood Haulage Pty Ltd (Thurgood);

7. George McKeon Earthmoving Pty Ltd trading as GME Civil Construction (GME) as well as Tender response clarification that was also withheld from disclosure by the respondent.

GIPA 2020/39 in relation to TQE 17/35 (NCAT File number 2020/363179)

12. The Council’s GIPA 2020/39 Decision concerned the applicant’s access application for information relating to Tender TQE 17/35 for the supply and delivery of gravel to Council for the period from 1 March 2018 to 30 June 2019. The tender closed on 30 January 2018 and was also a “Schedule of Rates tender”.

13. Mr Male’s application sought access to the following information:

“All tender submissions lodge (sic) for tender TQE 17/35 including all submissions considered by Council including all internal records relating to the evaluation of tender submissions and the determination thereof. All signed contracts entered into by Council in respect to the awarding of the tender to successful tenders.”

14. The Council consulted with the third party tenderers in response to the applicant’s request for information and received two objections to the release of tender submissions, from PBM and Holcim.

15. The Council’s decision dated 29 October 2020 provided partial access to the information requested. The Council did not provide copies of any of the tender submissions to the applicant.

16. The applicant requested an internal review of the decision. Under Notice of Decision (Internal Review) dated 7 December 2020, the Council decided to release some documents and withhold others. The Schedule of Documents annexed to the GIPA 2020/39 Decision lists the documents that were released or released in redacted form, and the documents that were withheld.

Documents released or released in redacted form under GIPA 2020/39 Decision

17. The documents that were released to Mr Male are broadly described below:

1. Advert and tender documents (TQE 17/35) for the supply and delivery of DGB20 and DGS40 gravel;

2. Tender analysis dated 1 February 2018 identifying 4 tenderers and containing a broad price analysis indicating that PBM had a price advantage to all sites. The price analysis did not disclose specific prices tendered by each potential supplier, although the analysis did disclose that the rates of one tenderer (Holcim) to some sites were not calculated as it was clear that tenderer’s rates were at least $6/tonne more than the lowest tendered rate;

3. An extract from the minutes of Council’s meeting held on 20 February 2018 to consider and accept the Tender Evaluation Panel’s recommendation that the tender of PBM (noted to have a clear price advantage to all locations) be accepted for the supply and delivery of DGB20 and DGS40 gravel provided the material meets the specification at the time of delivery and the supplier can meet Council’s delivery requirements.

Documents withheld under GIPA 2020/39 Decision

18. The Council withheld its Tender Analysis containing pricing from each of the 4 tender submissions and withheld the 4 tender submissions received from:

1. Arnway;

2. Holcim (Australia) Pty Limited (Holcim);

3. Hurd Haulage Pty Ltd trading as HY-TEC Concrete & Aggregates (Hurd);

4. PBM.

GIPA 2020/42 in relation to TQE 16/16 (NCAT File number 2020/363191)

19. The Council’s GIPA 2020/42 Decision concerned the applicant’s access application for information relating to Tender TQE 16/16 for the supply and delivery of gravel to Council for the period from 1 December 2016 to 30 November 2017. The tender closed on 1 November 2016 and was also a “Schedule of Rates tender”.

20. Mr Male’s application sought access to the following information:

“All tender submissions lodge (sic) for tender TQE 16/16 including all submissions considered by Council including all internal records relating to the evaluation of tender submissions and the determination thereof. All signed contracts entered into by Council in respect to the awarding of the tender to successful tenders.”

21. The Council consulted with the third party tenderers in response to the applicant’s request for information and received no response.

22. The Council’s decision dated 29 October 2020 provided partial access to the information requested. The Council did not provide copies of any of the tender submissions to the applicant.

23. The applicant requested an internal review of the decision. Under Notice of Decision (Internal Review) dated 7 December 2020, the Council decided to release some documents and withhold others. The Schedule of Documents annexed to the GIPA 2020/42 Decision lists the documents that were released or released in redacted form and the documents that were withheld.

Documents released or released in redacted form under GIPA 2020/42 Decision

24. The documents that were released to Mr Male are broadly described below:

1. A copy of TQE 16/16;

2. An extract from Council minutes of a meeting held on 15 November 2016 to accept tenders for the supply and delivery of gravel from 3 of the 4 tenderers, namely Arnway, Hurd and PBM (subject to PBM demonstrating that its products conform with the specification since its tender did not include test results). This document made reference to a confidential tender price analysis in an appendix “K” which contained a table of specific pricing tendered by each of the 3 successful tenderers, however the pricing information was redacted from the document provided to the applicant.

Documents withheld under GIPA 2020/39 Decision

25. The Council withheld the 4 tender submissions received in response to the tender from:

1. Arnway;

2. Hurd;

3. PBM;

4. Coastal Earthmoving.

Public interest considerations relied upon by the respondent to withhold information

26. In these reasons, I collectively refer to the documents withheld or released in redacted form as the “Documents Withheld”. In refusing to provide access, the respondent relied upon clauses 1(d), 1(g), 3(a), 4(b), 4(c) and 4(d) in the table to s 14 of the GIPA Act (s 14 Table). In its GIPA Decision 2020/37 (TQE 19/16), the respondent also referred to cl 6(1) of the s 14 Table, but did not consider this to be a consideration against disclosure.

The task of the Tribunal

27. The Tribunal’s task is to make the “correct and preferable decision”, having regard to the material before it including any factual material and any applicable written or unwritten law, as to whether access to the Documents Withheld should be given to the applicant: s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADRAct). The Tribunal re-makes the decision, as if it were the administrator: Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. However, the time at which the determination is to be made as to the correct and preferable decision is the date and time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

28. It is well established that, in considering an application for review, the Tribunal is not constrained to have regard only to the material that was before the respondent but may have regard to any relevant material before the Tribunal at the time of its review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. In this regard, in addition to the material that was before the respondent, the Tribunal had before it the submissions and affidavit evidence filed in the proceedings by each of the parties, a submission pursuant to s 104(3) of the Act from Hurd (being a party who could be aggrieved by the Tribunal’s decision in these proceedings), objections from Bayval, Holcim and PBM, the applicant’s oral evidence, the oral evidence of Mr Reeves on behalf of the respondent, oral submissions on behalf of each party and Mr Reeves’ statutory declaration provided to the Tribunal after the hearing. The Tribunal also had before it confidential material filed by the respondent and provided only to the Tribunal (not read by the applicant or the applicant’s legal representative).

29. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the respondent in accordance with any directions or recommendations of the Tribunal: s 63 of the ADR Act.

Issues to be determined

30. The issues to be decided in these proceedings are:

1. to identify the public interest considerations in favour of disclosure of the Documents Withheld and the decide what weight is to be afforded to them;

2. to identify any personal factors of the applications that can be taken into account (either for or against disclosure) and decide the weight to be afforded to them;

3. whether the Council has established that clauses 1(d), 1(g), 3(a), 4(b), 4(c) and 4(d) in the s 14 Table apply as relevant public interest considerations against disclosure of the Documents Withheld and decide the weight to be afforded to them;

4. whether the submitted public interest considerations to refuse to release the Documents Withheld, if made out, outweigh the public interest considerations in favour of disclosure.

Material before the Tribunal

31. The Council relied on the following material:

1. an affidavit of Dylan Joseph Malcolm Reeves (Mr Reeves) dated 24 February 2021 (marked “Exhibit R1”);

2. an affidavit of Adriana Maria Kleiss (Ms Kleiss) dated 26 February 2021 (marked “Exhibit R2”);

3. a second affidavit of Mr Reeves dated 12 May 2021 (marked “Exhibit R3”);

4. a bundle of documents comprising copies of the documents released to the applicant filed on 1 March 2021 (marked “Exhibit R4”);

5. a submission made pursuant to s 104(3) of the GIPA Act on behalf of a third party, Hurd Haulage Pty Ltd under the trade name of HY-TEC Concrete & Aggregates, filed on 29 March 2021 (marked “Exhibit R5”);

6. written Submissions on behalf of the respondent prepared by Mr Simington of Lindsay Taylor Lawyers and filed on 1 March 2021;

7. written Submissions in Reply on behalf of the respondent prepared by Mr Simington and filed on 14 May 2021;

8. a statutory declaration of Mr Reeves dated 5 July 2021 filed after the hearing had concluded (not marked as an exhibit and noted under the heading “Subsequent further written material provided to the Tribunal after the hearing”).

32. The applicant relied on the following material:

1. three applications for administrative review, the first filed on 10 and 11 December 2020 with respect to case 2020/351918; the second filed on 21 December 2020 with respect to case 2020/363179 and the third filed on 22 December 2020 with respect to case 2020/363191;

2. an Outline of Submissions from Mr Douglas-Baker of Counsel filed on 27 April 2021;

3. an affidavit of Peter Male (Mr Male) affirmed on 23 April 2021 (marked “Exhibit A1”);

4. an affidavit of George Jon McKeon (Mr McKeon) on behalf of GME dated 22 April 2021 (marked “Exhibit A2”);

5. an affidavit of Wayne Allan Arndell (Mr Arndell) on behalf of Arnway dated 26 April 2021 (marked “Exhibit A3”);

6. a second affidavit of Mr McKeon on behalf of GME dated 25 May 2021 (marked “Exhibit A4”);

7. a one-page document filed in the Tribunal on the day of the hearing which sets out a number of paragraphs and sentences or part-sentences in the affidavits of Mr Male (Exhibit A1), Mr McKeon (Exhibit A2) and Mr Arndell (Exhibit A3) that are not to be read or considered as evidence (marked for identification as “Exhibit A5”).

Oral evidence

33. Mr Reeves, on behalf of the respondent, gave oral evidence and was cross-examined at the hearing. After the hearing had concluded, Mr Reeves sought to clarify aspects of his oral evidence (refer to the paragraphs under the heading “Subsequent further written material provided to the Tribunal after the hearing”).

34. Mr Male gave oral evidence and was cross-examined at the hearing.

Oral submissions

35. Opening and closing oral submissions were made by both parties during the hearing.

Subsequent further written material provided to the Tribunal after the hearing

36. After the hearing had concluded, it was brought to the Tribunal’s attention by email from Mr Simington (the Council’s legal representative) on 22 June 2021 that Mr Reeves (the Council’s primary witness) had reflected upon an answer he had given under cross-examination, and considered that his answer had been incorrect. Mr Simington advised the Tribunal that Mr Reeves did not appreciate the incorrectness of his answer at the time of his cross-examination.

37. Subsequently, and as a result of this disclosure, the applicant’s solicitor (Mr Warren Wells of Balmain Lawyers) raised no objection to Mr Simington’s correspondence however further questions were put to Mr Reeves on the basis that Mr Reeves’ clarified answer, had it been so given at the hearing, would have prompted further questions of him under cross-examination. Mr Wells’ further questions to be put to Mr Reeves were provided to the Tribunal on 29 June 2021.

38. On 5 July 2021 the Council’s legal representative provided a Statutory Declaration of Mr Reeves containing answers to the applicant’s solicitor’s further questions.

39. The Tribunal has accepted Mr Reeves’ Statutory Declaration as further documentary evidence to be considered in these proceedings.

Confidential material

40. The Council also provided to the Tribunal on a confidential basis a copy of the Documents Withheld which are located at section 2(b) of the Schedule of Documents relating to Bundle 1 filed on 20 January 2021 and section 2(b) of the Schedules of Documents relating to Bundles 2 and 3 filed on 27 January 2021.

41. Subsequently, amended Schedules were filed on 14 May 2021 with respect to Bundle 1 (noting the objection of Bayval) and with respect to Bundle 2 (noting the objections of PBM and Holcim).

42. The three bundles of confidential material were marked as follows:

1. “Confidential Exhibit CR1” for Bundle 1 relating to the GIPA application 2020/37 concerning TQE 19/16 (relating to pavement material) (NCAT File number 20/351918);

2. “Confidential Exhibit CR2” for Bundle 2 relating to the GIPA application 2020/39 concerning TQE 17/35 (relating to gravel) (NCAT File number 2020/363179); and

3. “Confidential Exhibit CR3” for Bundle 3 relating to GIPA 2020/42 concerning TQE 16/16 (also relating to gravel) (NCAT File number 2020/363191).

43. The confidential material was read by the Tribunal Member and was not provided to the applicant or the public.

44. Mr Simington sought to have a private session to assist the Tribunal in understanding the confidential material. The Tribunal determined that it was appropriate for a private hearing to occur without the presence of the applicant or the applicant’s legal representative.

Private hearing

45. As a matter of practicality, Mr Simington assisted the Tribunal Member’s understanding of how the information contained in Confidential Exhibit CR1, Confidential Exhibit CR2 and Confidential Exhibit CR3 was organised, and how to read the Council’s pricing analysis spreadsheet documents.

Issue concerning inadvertent disclosure to the applicant of the transcript record of the private session

46. By letter dated 9 November 2021, the applicant’s legal representative (Mr Wells) advised the Council’s legal representative (Mr Simington) that he had been instructed by Mr Male to obtain a transcript of these proceedings. Mr Wells had obtained a transcript and provided it to Mr Male without first checking it, and subsequently realised that the transcript included the Tribunal’s private session with Mr Simington concerning the confidential material. Mr Wells advised Mr Simington that he himself did not read that part of the transcript. Mr Wells also advised Mr Simington that Mr Male had not appreciated that a part of the transcript was confidential and that he had read the whole of it. Mr Wells further advised Mr Simington that he received an undertaking from his client that he (Mr Male) would redact that portion of the transcript and not provide a copy of it to any other person.

47. Mr Wells advised the Tribunal on 18 November 2021 of what had transpired regarding the transcript and his client’s undertaking. Mr Wells advised the tribunal that the Council’s solicitors were “in the process of seeking to review the transcript so as to consider what order it (sic) may be appropriate for the Tribunal to make in respect of the matter”.

48. The Tribunal Member received notice of Mr Wells’ correspondence on 22 November 2021 and drafted orders which were issued to the parties on 24 November 2021 in the following terms:

1. Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the transcript record of that part of the hearing on 31 May 2021 held in private pursuant to an order under s 49(2) of the Act to anyone other than the respondent or its legal representative, is prohibited.

2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the evidence or submissions given before the tribunal during that part of the hearing on 31 May 2021 held in private pursuant to an order under s 49(2) of the Act or of matters contained in documents lodged with the Tribunal by the respondent on a confidential basis to anyone other than the respondent or its legal representative, is prohibited.

3. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the evidence given before the Tribunal during that part of the hearing on 31 May 2021 held in private pursuant to an order under s 49(2) of the Act or of the contents of documents lodged with the Tribunal by the respondent on a confidential basis to anyone other than the respondent or its legal representative, is prohibited.

49. The parties were prompted by the Tribunal on 24 January 2021 to advise their position on the disclosure of the transcript containing the record of the private session. On behalf of both parties, the applicant’s legal representative advised the Tribunal Member on 1 February 2022 that:

1. the applicant was of the opinion that no reasonable, objective person reading the transcript could have received any indication as to the content or gained any knowledge of the content of the confidential documents the subject of the proceedings;

2. the respondent considered that the case for non-disclosure of the remainder is undiminished as the substance of the material remains confidential;

3. both parties consider there is no issue to address by way of further submissions concerning the transcript.

50. Neither Mr Male nor his legal representative has seen the confidential material (CR1, CR2, and CR3) tendered by the Council and read by the Tribunal.

51. The transcript contains various statements by the Council’s legal representative generally referring the Tribunal Member to pricing schedules, weighted scores that were applied to tenderers’ submissions in relation to various evaluation criteria and tenderers’ ranking relative to other tenderers, and material testing. It also contains statements by the Tribunal Member querying how to read and interpret pricing schedules and the cost per kilometres to deliver material to a site.

52. On the basis that the applicant has not read the confidential material (CR1, CR2 and CR3) I accept his view that no reasonable, objective person reading the transcript could have received any indication as to the content of the confidential documents. I do not consider that Mr Male’s reading of the transcript has conferred a commercial advantage on him. I also do not consider that the commercial interests of the Council have been prejudiced by Mr Male’s reading of the transcript.

Statutory framework and legal principles

53. The primary applicable law is contained in the GIPA and relevant case law, as discussed below.

Tribunal’s jurisdiction

54. The Council’s decision under review is a reviewable decision in accordance with s 80 of the Act.

55. The Tribunal’s jurisdiction to review the Council’s decisions is governed by s 100 of the Act, s 9 of the ADR Act and s 28(1) of the Civil & Administrative Tribunal Act 2013 (NSW) (NCAT Act).

Persons exercising rights under s 104 of the GIPA Act

56. Section 104(3) of the Act recognises the right of a person who could be aggrieved by an administrative review decision of the Tribunal, to appear and be heard in proceedings before the Tribunal. As affirmed in Forbidden Foods at [55], citing Walker v Gosford City Council [2016] NSWCATAD 207 at [31], a person aggrieved has the right to “ventilate any arguments in support of their position or otherwise”.

57. Hurd submitted tender responses to the Council in TQE 17/35 and TQE 16/16 and exercised its right to be heard in this review. Hurd’s submission (Exhibit R5) opposed the disclosure to the applicant of documents that Hurd says were submitted to the Council in confidence.

Object of the GIPA Act

58. Sections 3(1)(b) and 3(1)(c) of the Act state that the object of the legislation is to open government information to the public by:

“(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.”

Presumption in favour of disclosure of government information

59. Section 5 of the Act establishes a statutory presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

Legally enforceable right to information unless there is an overriding public interest against disclosure

60. Section 9 of the Act provides that applicants seeking access to government information have a legally enforceable right to be provided with access to the information, unless there is an overriding public interest against its disclosure.

Public interest considerations in favour of disclosure

61. Section 12(1) of the Act provides that there is a general public interest in favour of the disclosure of government information. The Act does not limit the range of public interest considerations in favour of disclosure: s 12(2). Several examples of considerations in favour of disclosure are set out in a Note to s 12.

Public interest considerations against disclosure

62. Section 14(1) of the Act provides that there is a conclusive presumption of an overriding public interest against disclosure of any of the government information described in Schedule 1 of the Act.

63. In the present case, none of the considerations against disclosure specified in Schedule 1 are relevant. However, in the absence of Schedule 1 having any application, the Tribunal’s task is to consider and weigh the public interest considerations listed in the Table to s 14 of the Act. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in each of the clauses in the s 14 Table.

64. For the purpose of this review, the Tribunal notes that the respondent relied upon the following public interest considerations against disclosure in the Act, arguing that the disclosure of the information could reasonably be expected to have one or more of the following effects:

• cl 1(d): prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions;

• cl 1(g): found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence;

• cl 3(a): reveal the personal information of individuals;

• cl 4(b): reveal commercial-in-confidence provisions of a government contract;

• cl 4(c): diminish the competitive commercial value of any information to any person;

• cl 4(d): prejudice ay person’s legitimate business, commercial, professional or financial interests.

Balancing the competing public interests

65. Before deciding whether to release or withhold information, an agency must apply the public interest balancing test set out in s 13 of the Act, and decide whether or not an overriding pubic interest against disclosures exists in regard to the information sought. The balance is always weighted in favour of disclosure, unless outweighed by considerations against disclosure:

“There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.”

66. How to apply the public interest test under s 13 of the Act was confirmed in Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) at [19]:

“Accordingly, in all cases other than those falling under the terms of Sch 1, the public interest test under the GIPA Act involves the following:

(a) identifying the public interest in favour of disclosure;

(b) identifying the public interest against disclosure; and

(c) determine where the balance lies.”

67. Further guidance on weighing public interest considerations for and against disclosure was provided in Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst) at [94]:

“Ultimately, the balancing of these competing interests is a question fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.”

68. The balancing exercise requires the Tribunal to make a broad value judgment: Transport for NSW v Searle [2018] NSWCATAP 93 (Searle) at [104], as cited in Page v Commissioner of Police [2020] NSWCATAD 163 (Page) at [51]:

“that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].”

Principles that apply to determining an overriding public interest against disclosure

69. Under s 15 of the Act, a determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

“(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.”

No conditions are imposed on the use or disclosure of information once released

70. Section 15(e) and s 73(1) of the Act provide that an agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. In effect, disclosure of information under this provision is disclosure “to the world at large”.

71. In weighing the public interest considerations for and against disclosure, it is therefore relevant to consider that if the Documents Withheld were disclosed to the applicant, there would be no restriction imposed to limit or constrain his disclosure of the information more broadly.

Taking the personal factors of the application into account

72. In deciding an application where it is necessary to balance public interest considerations, an agency and the Tribunal is entitled under s 55 of the Act to take into account the personal factors of the application which are set out below:

“(1) the applicant’s identity and relationship with any other person;

(2) the applicant’s motives for making the access application; and

(3) any other factors particular to the applicant.”

73. These personal factors can be taken into account as factors in favour of disclosure: s 55(2).

74. The personal factors can also be taken into account as factors against disclosure if (and only to the extent that) they are relevant to the Council’s and the Tribunal’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 of the Table. In the present case, since the Council relied upon clauses 3(a), 4(b), 4(c) and 4(d) in the Table, the personal factors of the application may be taken into account as factors against disclosure if they are relevant to consideration of those clauses in the Table.

Definitions and meanings of relevant terms

Meaning of “agency” and “government information”

75. Section 4 of the Act defines “agency” to include “a local authority”. The Council is therefore an agency to which the legislation applies. The term “government information” is broadly defined to mean “information contained in a record held by an agency”.

Meaning of “commercial-in-confidence provisions”

76. Clause 1 of Schedule 4 to the Act defines “commercial-in-confidence provisions” of a contract to mean any provisions of the contract that disclose:

1. the contractor’s financing arrangements, or

2. the contractor’s cost structure or profit margins, or

3. the contractor’s full base case financial model, or

4. any intellectual property in which the contractor has an interest, or

5. any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future.

Meaning of “reveal”

77. The term “reveal” is defined in cl 1 of Schedule 4 to the Act to mean “disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).”

Meaning of “could reasonably be expected to”

78. Each of the public interest considerations relied upon by the respondent contains the introductory words “could reasonably be expected to have one or more of the following effects…”.

79. The words “could reasonably be expected to” are to be given their ordinary meaning: Attorney General’s Department v Cockroft (1986) 10 FCR 180 (Cockroft) at [190], per Bowen CJ and Beaumont JJ (as cited with approval by Senior Member Montgomery in Solomon v Corrective Services NSW [2016] NSWCATAD 257 at [22]-[30]):

“In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information” were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd, or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like …”

80. The words “could reasonably be expected to” have been held to require “something more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived”: Leech v Sydney Water Corporation [2010] NSWADT 198 (Leech) at [28], adopted in Flack at [41]-[42].

81. Page referred to the principles to be applied when considering whether disclosure of information “could reasonably be expected” to have a particular effect, drawing from the Tribunal Appeal Panel’s decision in Searle at [68]:

“(1) The appellant bore the onus of establishing the existence of one or more of the relevant public interest considerations against disclosure in cl 1 of the Table in s 14 of the GIPA Act: see s 105.

(2) The words “could reasonably be expected” are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v University of Sydney [2015] NSWCATAD 104 at 48.

(3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Dept of Finance & Services [2013] NSWADT 60 at [22].

(4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53].”

Meaning of “prejudice”

82. Page also relied on the decision in Hurst at [60] as affirmed in Searle at [68] to understand the meaning of “prejudice” and how to determine whether the disclosure of information could reasonably be expected to prejudice the future supply of information at a broad operational level:

“(5) “Prejudice” is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

(6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [21], [22] and [26].”

83. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockroft per Bowen CJ and Beaumont at [106].

Standard of proof (balance of probabilities) and evidentiary requirements

84. The standard of evidence required to establish that disclosure could reasonably be expected to have a nominated effect, was considered in Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 (Newcastle) at [59]:

“Based on these authorities when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.”

85. The Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 (Meacham) at [54] and [83] summarised the requirements for proof of questions of fact in administrative review proceedings generally:

“[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41 (Pochi) at 62, 68 (Deane J); [1980] FCA 85 ; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (Sullivan) at [5]–[8], [15]–[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

…

[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]–[8], [15]–[17].”

Consultation with third parties on public interest considerations

86. The GIPA Act recognises the rights of third parties where government information concerns them. Under s 54(1), an agency must take such steps as are reasonably practicable to consult with a third party before providing access to information relating to that third party in response to an access application if it appears that:

1. the information is of a kind that requires consultation;

2. the third party may reasonably be expected to have concerns about the disclosure of the information in response to an access application; and

3. those concerns may reasonably be expected to be relevant to whether there is a public interest consideration against disclosure of the information.

87. In the matters the subject of these proceedings, the kind of information relating to a third party that required consultation included personal information about the third party (or its staff) and concerns about the third party’s business, commercial, professional or financial interests: s 54(2) of the Act.

88. The purpose of consultation under s 54 is to ascertain whether the third party has an objection to disclosure of some or all of the information and the reasons for any such objection: s 54(4) of the Act.

89. Although the views of third parties are not determinative or binding upon the agency, objections must be taken into account when deciding whether there is an overriding public interest against disclosure: s 54(5) of the Act.

90. In addition to consultation rights conferred by s 54 of the Act, third party objectors who meet the test of a “person who could be aggrieved” have available to them the right conferred by s 104(3) of the Act to appear and be heard, as previously noted in these reasons.

The respondent has the burden of establishing that its decision is justified

91. Under s 105(1) of the GIPA Act, the Council has the burden of establishing that its decisions are justified. The Council is obliged to justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 (Forbidden Foods) at [52].

Procedure for dealing with public interest considerations

92. Section 107(1) of the GIPA Act sets out a procedure for dealing with public interest considerations. The procedure requires the Tribunal to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure, as set out below:

“107 Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.”

Other relevant legislation and government policy considerations

93. Under the Local Government Act 1993 (NSW) (LGA), Councils are given a general power to exercise functions conferred on them by or under that Act: s 21, or by or under other legislation: s 22, with a general power to do “all such things as are supplemental to, or consequential on, the exercise of its functions”: s 23, subject to the principles in Chapter 3 and subject to any guidelines issued by the Departmental Chief Executive under s 23A.

94. Section 24 of the LGA broadly describes the service functions of Councils:

24 Provision of goods, services and facilities and carrying out of activities

A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law.

95. In connection with undertaking its service functions, the Council has obligations relating to procurement activities. In particular, the Council must invite tenders before entering into any contract for the provision of goods and services involving an estimated expenditure of $250,000 or more: s 55(1)(e) and s 55(3)(n)(i) of the LGA.

96. Chapter 4 of the LGA contains provisions which relate to how the community can influence what a Council does. Under s 10A(1) of the LGA, a meeting of the Council or Committee of the Council may be closed to the public where discussion concerns information or commercial information of the type or nature more particularly described in s 10A(2)(c) and s 10A(2)(d) as set out below:

“(c) information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business,

(d) commercial information of a confidential nature that would, if disclosed—

(i) prejudice the commercial position of the person who supplied it, or

(ii) confer a commercial advantage on a competitor of the council, or

(iii) reveal a trade secret…”

97. The provisions in s 10A(1) and s 10A(2) of the LGA become relevant when considering the context in which information is provided by the Council’s Tender Evaluation Panels to the Council for consideration of recommendations to award contracts to tenderers.

98. The respondent is also subject to government policies, procedures and guidelines (government policy documents) in relation to procuring goods and services from the private sector. These include the following documents which were annexed to the affidavit of Mr Reeves (Exhibit R1):

1. Kempsey Shire Council Statement of Business Ethics (adopted on 27 August 2012) (Statement of Business Ethics);

2. Kempsey Shire Council Procurement Procedure Manual (adopted on 29 August 2019) (Procurement Procedure Manual);

3. Tendering Guidelines for NSW Local Government (dated October 2009) prepared by the Director General under s 23A of the LGA and issued by the NSW Department of Premier and Cabinet (OLG Tendering Guidelines). Under s 23A(3) of the LGA, a Council must take the OLG Tendering Guidelines into consideration before exercising any of its functions.

The applicant’s case

99. The applicant’s case was advanced as stemming from the public’s legitimate interest in the tender evaluation process. Flowing from that asserted public interest, the applicant’s case relied upon the general presumption in favour of disclosure in s 5 of the Act and Mr Male’s legally enforceable right in s 9 of the Act to access the information unless there is an overriding public interest against disclosure. The applicant also argued considerations in favour of disclosure as set out in examples (a), (b), (c) and (e) in the Note to s 12 of the Act, including enhanced government accountability and the effective oversight of the expenditure of public funds. In support of those considerations, the applicant submitted there were four issues of concern that were key to his argument. He provided an affidavit annexing a considerable volume of material about those issues of concern.

100. Apart from his argument on the public interest in the tender evaluation process, Mr Male’s evidence confirmed that he is a competitor in the industry and has a personal interest in the tender process because he is interested in supplying materials to the Council.

101. The applicant contended that by not providing access to the information requested, the Council had obscured the transparency of the tender process and that it is not possible to know whether public expenditure on the successful tenderers was in the “best interests” of the community.

102. The applicant submitted that the Council had not discharged its burden of establishing that its decisions to withhold the information requested were justified. He argued that the reasons relied upon by the Council to withhold information and documents do not demonstrate an overriding public interest against disclosure. In particular, he contended that the information disclosed in the tender process was not commercially sensitive or confidential. This was germane to his arguments against the respondent’s reliance upon a number of considerations against disclosure. Further, the applicant argued that since the tender processes have been completed, the information ought now be disclosed.

Applicant’s four key issues of concern

103. Mr Male raised four concerns that he asserted were key to his arguments in favour of disclosure:

1. first, that the Council had not entered into written contracts with successful tenderers as required, and had not disclosed contracts valued at $150,000 or more in its Register of Government Contracts (RoGC);

2. second, that the Council did not hold successful tenderers to the prices they had tendered, and that the Council’s practice of issuing requests for quotations (RFQs) to tenderers when a tender is in place facilitates the Council calling for and accepting quotes that are higher than the prices as tendered. Mr Male also asserted that the Council issues RFQs to parties who have not participated in the tendering process;

3. third, that by not disclosing the tendered prices and not disclosing contracts in the RoGC, and by allowing tenderers to quote above their tendered prices, it is not possible for the public to oversee the expenditure of government funds in relation to the Council’s purchase of gravel and pavement materials;

4. fourth, that the Council is engaging suppliers who are not providing materials of a suitable quality as required under the tender specifications, and that the use of non-compliant materials leads to increased public expenditure on repairing newly constructed roads.

104. Mr Male clarified that, in making his submissions and providing his evidence, he did not allege that the Council or any of its officers had misused government funds.

The applicant’s evidence

105. Mr Male has more than 20 years’ experience in the construction and road making industries. In particular, he has experience in crushing and screening materials ranging from virgin excavated natural material to building demolition materials, which can be used for building and road making. He is employed as the general manager of two companies, NSW Crushing and Screening Pty Ltd (NSWC&S) and NSW Quarry Services Pty Ltd (NSWQ), with day-to-day involvement in supervising the works undertaken by the employees of those companies. Mr Male is the son of Denis Male and Kaylene Male who are the directors and shareholders of NSWC&S and NSWQ.

106. In or around 2014, NSWQ entered into a profit à prendre with the owner of the land on which a quarry known as Bates Quarry is situated near Kempsey. The primary use for the material extracted from Bates Quarry was to supply materials conforming to RMS 3051 for the upgrade of the Pacific Highway, for road construction generally, and for civil and construction works in the Kempsey Shire local government area.

107. NSWQ    supplies road making material from Bates Quarry to contractors who in turn supply those materials to the Council. Those contractors include GME and Arnway. The materials supplied to the Council are required to conform with RMS 3051.

108. Under cross-examination, Mr Male said that he developed an interest in the processes of Council in relation to the procurement of gravel in 2014 because the Council was purchasing materials from approximately 80 kilometres from the Kempsey Shire and that did not include Mr Male’s company. Mr Male said that he was interested in supplying materials to the Council and that because his company is a competitor in the industry, he was interested in examining the Council’s procurement processes.

109. Mr Male acknowledged under cross-examination that his interest in the processes of Council was because of his own interest, as opposed to the public interest. However, in re-examination, Mr Male said that he was interested in knowing that ratepayers receive value for money. I understood this to mean that Mr Male is interested in value for money being reflected in quality materials being used for roadworks at the best possible price, as funded by the rates paid by the citizens in the local government area.

110. Mr Male said that the one thing he did not know is the prices that were tendered by tenderers. He also said that he did not know whether the prices as tendered were the same as tenderers’ advertised pricing. However, he agreed with the proposition put to him that when a procurement process is underway for competitive pricing, different suppliers will treat the opportunity to tender for a potentially large contract by offering prices below their advertised rates for the purpose of competing against other potential suppliers.

3. Hurd’s submission included the following statement:

“The tender documents include sensitive information, being Hurd’s prices. The disclosure of such information would adversely affect Hurd’s legitimate commercial interests.”

296. PBM objected to having its tender submission in TQE 17/35 released on the grounds generally said to be the provisions in cl 4 of the s 14 Table (Business interests of agencies and other persons). PBM did not otherwise provide further details on the reason for its objection.

297. In Mr Reeves’ view, the release of the Documents Withheld would reduce the value of the information to tenderers because it would be made available to competitors to use, meet and beat in future tenders. In his view, the risk was that future tender submissions would respond to known pricing as opposed to offering to provide services at the best commercial rate.

298. Based on my reading of the confidential material and taking into account the objections of third parties, I am of the view (consistent with the reasoning in Zonneyville) that the tender submissions contain competitive commercial information which, if disclosed, could reasonably be expected to diminish the competitive commercial value of that information to tenderers because it could be used by competitors in future tender processes. Consistent with the reasoning in Newcastle and Meacham, I consider that the Council’s expectation that future tender submissions would respond to known pricing rather than elicit competitively priced bids, is reasonable and not a mere suspicion, since it is supported by logically probative material provided by Hurd, Bayval and Holcim.

299. I accept that release of the information could also reasonably be expected to diminish the competitive commercial value of information to the Council. This is because it could reasonably be expected that release of the information could lead to a reduction in competition, either through the reluctance of suppliers to participate or through knowledge of competitor pricing, resulting in future tender submissions failing to provide materials at the best commercial rate.

300. Accordingly, the respondent’s reliance upon cl 4(c) is justified. I give this consideration against disclosure substantial weight.

Clause 4(d) of the s 14 Table – prejudice any person’s legitimate business, commercial, professional or financial interests

301. The respondent argued that release of the Documents Withheld could reasonably be expected to prejudice the business, commercial, professional and financial interests of both the tenderers and the Council.

302. In Meriton at [148], the Tribunal found that the release of confidential tender information would prejudice the business interests of both the agency and the tender participants:

“In my view that can be no doubt that the withheld information concerns the legitimate business, commercial or financial interests of both UrbanGrowth and the tenderers. The relevant question is whether the disclosure could reasonably be expected to prejudice those interests.”

303. The applicant contended that having prices exposed may be the price that a supplier has to pay when the Council proposes to use funds to pay for that supplier’s services. Further, Mr Male submitted that:

1. the Council’s mere assertion of prejudice is not evidence of prejudice because of an expressed expectation that Council’s reputation with prospective suppliers would be damaged if it released the Withheld Documents;

2. the protection of tenderers’ prices is a secondary consideration to the public interest in overseeing the expenditure of public funds and exposing prices may be what a supplier should expect to occur in circumstances where the Council uses public funds to pay for that supplier’s services.

304. The respondent argued that the fact that the applicant is a competitor of the third party tenderers increases the expectation that disclosure of the information would prejudice the legitimate commercial interests of the tenderers.

305. On the evidence of Mr Reeves, the release of the Documents Withheld would also be expected to prejudice the legitimate business, commercial and financial interests of the Council. Two reasons were given for this view, that it would be expected to:

1. damage Council’s reputation with prospective suppliers generally; and

2. lead to a reduction in competition in future tender processes, either through the reluctance of suppliers to participate in tenders, or through knowledge of competitor pricing, thereby undermining future procurement processes.

306. In my view, as reasoned above, there can be no doubt that the information in the Documents Withheld concerns the legitimate business, commercial or financial interests of both tenderers and the Council. The relevant issue is whether the disclosure could reasonably be expected to prejudice those interests. I accept that any opinion regarding the likely effect of disclosure of information is somewhat speculative and is to be treated with caution. Nonetheless, the views of third parties are to be taken into account.

307. In Hurd’s submission, the disclosure of its information would “adversely affect Hurd’s legitimate commercial interests”. More broadly, Hurd’s submission contended that release of a tenderer’s response could reasonably be expected to reduce the competitive commercial value of the information to the tenderer and prejudice their commercial, business and financial interests.

308. Bayval’s strong objection included the following statement:

“Releasing the information provided in confidence during the tender process would prejudice Bayval’s legitimate business, commercial, professional or financial interests. As stated above, disclosing specific details of assets, insurances, materials and other aspects of Bayval’s business to the public including any potential competitors would be very damaging to Bayval and their business.”

309. Holcim objected to having its tender submission in TQE 17/35 released on the grounds that it would prejudice Holcim’s legitimate business, commercial, professional or financial interests. Holcim argued that its legitimate business interests would be prejudiced if details of the company’s supply capacities for its operations at various locations, pricing, the names of its subcontractors appointed under confidential subcontracts and product volumes were released.

310. Additionally, Holcim submitted that as a multi-national organisation with significant market share in the concrete and aggregates industry, the pricing of its products had a direct correlation to the volume of produce and services delivered and both were “sacred” to its business interests. Holcim further submitted that it must protect its product pricing, in compliance with national pricing regulations (although the applicable regulations were not further explained).

311. Holcim also expressed concern that disclosure of its information to a competitor would cause substantial harm to Holcim’s competitive position:

“The pricing of our products is sacred to the business interests of Holcim. As a multi-national organisation with significant market share in the concrete and aggregates industry, Holcim must protect disclosure of this information in compliance with national pricing regulations.

The volume of product and services delivered is similarly sacred to the business interests of Holcim. Where pricing is often directly correlated to volume. The risk is further heightened where the applicant individual may be a competitor of Holcim who may be seeking to use Holcim’s commercial sensitive information of Holcim to our disadvantage. If this is the case then there is a serious and undeniable probability that the disclosure of this information would prejudice the business interests of Holcim.”

312. In weighing public interest considerations for and against disclosure, the disclosure of information cannot be made subject to any conditions on the use or disclosure of information (s 15 and s 73 of the GIPA Act). If information contained in the Documents Withheld is disclosed to the applicant, it would be open to him to disclose the information more broadly.

313. On the totality of the evidence before me, and taking into account the objections by Hurd, Bayval, Holcim and PBM, I am satisfied that disclosure of the information sought could reasonably be expected to prejudice the legitimate business, commercial professional or financial interests of both the tenderers and the Council.

314. Cl 4(d) is therefore a relevant consideration to which I attribute significant weight.

Conclusion

315. In making the correct and preferable decision, I am required to be satisfied that the respondent’s Decision(s) were justified.

316. I am satisfied that the applicant is not interested in tenderers’ commercial-in-confidence information as defined in Schedule 4 of the GIPA Act insofar as it relates to tenderers’ proprietary or intellectual property information contained in such documents as safety and risk management systems, training, and financial information relating to insurance or plant and equipment assets.

317. It is clear that the applicant is only interested in tenderers’ pricing and the Council’s pricing analysis, and that he has a particular interest because he is a competitor in the industry and is interested in winning future tenders for the supply of materials to the Council.

318. I am satisfied that the applicant’s arguments concerning the effective oversight of the expenditure of public funds are a legitimate and powerful argument in favour of disclosure. I am, however, of the view that the public interest in overseeing public expenditure cannot be intended to require the disclosure of pricing where the release of that information could reasonably be expected to have the effects described in cl 1(d), 1(g), 4(b), 4(c) and 4(d) in the s 14 Table.

319. Even if the proprietary information was redacted, disclosure to the applicant of the Documents would be futile since the pricing information would also be redacted for the reasons given.

320. I do not accept the applicant’s argument that the Council has obscured the transparency of the tender process. I consider that the disclosure of the documents to the applicant (Exhibit R4) provide adequate insight into the Council’s process for evaluating tenders.

321. I am satisfied that disclosure of the Documents Withheld would unconditionally disclose commercial-in-confidence and confidential information of third parties to a competitor in circumstances where the information was provided in confidence. I am satisfied that release of the information could reasonably be expected to reduce the competitive commercial value of the information to the tenderers and prejudice their commercial, business and financial interests. I am also satisfied that release of the information would prejudice the legitimate business, commercial, professional or financial interests of the Council because it would impair its ability to obtain best value for money for goods and services for the community by prejudicing the supply to Council of similar information in the future and undermine future procurement processes by reducing competition.

322. In the final analysis, having considered the evidence and the submissions, including reading the confidential material and having applied the principles in s 15 of the Act, I have concluded that on balance, the considerations against disclosure of the Documents Withheld outweigh those in favour of disclosure by a comfortable margin.

323. Accordingly, except for the release of the testing results for PBM in TQE 19/16 which I note the Council is prepared to release subject to giving notice to PBM of that course of action and the required consultation in accordance with s 54(6) of the Act, I am satisfied that the respondent’s decisions were justified and there is an overriding public interest against disclosure of the Documents Withheld.

Orders

324. Accordingly, I make the following orders:

1. The decision of the respondent dated 6 November 2020 in file number 2020/351918 is varied to the effect that the test results for materials as contained in the tender submission of Pacific Blue Metal Pty Ltd in response to the respondent’s request for tender TQE 19/16 are to be released within 35 days of the publication of these reasons subject to the provision of notice of that course of action to Pacific Blue Metal Pty Ltd and the required consultation under s 54(6) of the Government Information (Public Access) Act 2009 (NSW) .

2. The decision of the respondent dated 7 December 2020 in file number 2020/363179 is affirmed.

3. The decision of the respondent dated 7 December 2020 in file number 2020/363191 is affirmed

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

04 February 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 the reference to 'GME' at [323] is amended to 'PBM'.

04 February 2022 - ibid.

Decision last updated: 04 February 2022