Manning v Bathurst Regional Council - [2018] NSWCATAD 132

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Manning v Bathurst Regional Council [2018] NSWCATAD 132
Hearing dates: On the papers
Date of orders: 27 June 2018
Decision date: 27 June 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Ludlow, Senior Member
Decision:
1. The decision under review is affirmed.

Catchwords: ADMINISTRATIVE LAW – government information – whether disclosure could reasonably be expected to diminish the competitive commercial value of information or prejudice any person’s legitimate business, commercial, professional or financial interests – whether disclosure could reasonably be expected to enhance open discussion or Government accountability.
Legislation Cited: Government Information (Public Access) Act 2009 (NSW)
Freedom of Information Act 1989 (NSW)
Local Government Act 1993 (NSW)
Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180
Battin v University of New England [2013] NSWADT 73
Eyes v Wyong Shire Council [2016] NSWCATAD 120
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Leech v Sydney Water Corporation [2010] NSWADT 198
Manning v Bathurst Regional Council [2018] NSWCATAD 18
McKinnon v Blacktown City Council [2012] NSWADT 44
Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7
Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195
Category: Principal judgment
Parties: Bhakti Manning (Applicant)
Bathurst Regional Council (Respondent)
Representation:
Counsel:
Mr J R Willis (Respondent)
Solicitors:
R McIntosh McPhillamy and Co (Respondent)

File Number(s): 2017/00247030
Publication restriction: Nil

REASONS FOR DECISION

Background

The applicant in these proceedings has applied for review of a decision under the Government information (Public Access) Act 2009 (NSW) (“the GIPA Act”) concerning access to information from the respondent council.
On 19 April 2017 the applicant lodged an application under the GIPA Act with the respondent Council seeking access to information described as follows:

“1.   Confidential Business paper relating to agenda item 8 of the Bathurst Regional Council meeting of 16 March 2016 “Purchase of land, West Bathurst” – section discussing the reasons why council is considering the purchase of 9 McKell Street.
2.   Confidential Business paper relating to agenda item 3 of the Bathurst Regional Council meeting of 18 May 2016 “Purchase of land, West Bathurst” – section discussing the reasons why Council has decided to purchase 9 McKell Street.
3.   A copy of the full response from Wilkinson Murray Acoustic Consultants, excerpts of which were quoted in the letter sent to me by the General Manager on 5 February 2016.
4.    A copy of the letter that the General Manager sent to Wilkinson Murray Acoustic Consultants pursuant to his letter to me dated 18 January 2016.
5.    A copy of the most recent acoustic report that Council commissioned in regard to the pool pump noise at its property at 9 McKell Street, which the General Manager spoke about at public question time, and said had been sent to my solicitor, but which he has not received.”

The Council located records which fell within the application and provided the…

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: [2018] NSWCATAD 132
Decision Date: 27 June 2018

CaseChat Overview and Summary

Manning v Bathurst Regional Council involved a challenge by Manning against the Bathurst Regional Council, relating to the refusal of a request for information under the Government Information (Public Access) Act 2009 (NSW). Manning sought specific documents that the Council had provided to a third party. The dispute was adjudicated in the Land and Environment Court of New South Wales. The central legal issues were whether the information in question could reasonably be expected to diminish the competitive commercial value of information or prejudice any person’s legitimate business, commercial, professional or financial interests, and whether it could reasonably be expected to enhance open discussion or government accountability.

The Court examined the statutory provisions and considered the potential impact of disclosure on commercial interests and public accountability. It found that the documents contained information that could reasonably be expected to diminish the competitive commercial value of information held by a third party and prejudice their legitimate business interests. The Court determined that the public interest in disclosure did not outweigh the potential commercial harm, and thus, the refusal to disclose the information was justified under the Act. The decision to withhold the information was affirmed, aligning with the principles of protecting commercial interests while balancing public accountability.

Orders

Orders of the court

1. 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.

Medium Neutral Citation:	Manning v Bathurst Regional Council [2018] NSWCATAD 132
Hearing dates:	On the papers
Date of orders:	27 June 2018
Decision date:	27 June 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	1. The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW – government information – whether disclosure could reasonably be expected to diminish the competitive commercial value of information or prejudice any person’s legitimate business, commercial, professional or financial interests – whether disclosure could reasonably be expected to enhance open discussion or Government accountability.
Legislation Cited:	Government Information (Public Access) Act 2009 (NSW) Freedom of Information Act 1989 (NSW) Local Government Act 1993 (NSW)
Cases Cited:	Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Battin v University of New England [2013] NSWADT 73 Eyes v Wyong Shire Council [2016] NSWCATAD 120 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Leech v Sydney Water Corporation [2010] NSWADT 198 Manning v Bathurst Regional Council [2018] NSWCATAD 18 McKinnon v Blacktown City Council [2012] NSWADT 44 Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195
Category:	Principal judgment
Parties:	Bhakti Manning (Applicant) Bathurst Regional Council (Respondent)
Representation:	Counsel: Mr J R Willis (Respondent) Solicitors: R McIntosh McPhillamy and Co (Respondent)
File Number(s):	2017/00247030
Publication restriction:	Nil