Manning v Bathurst Regional Council - [2018] NSWCATAD 18

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Manning v Bathurst Regional Council [2018] NSWCATAD 18
Hearing dates: On the papers
Date of orders: 19 January 2018
Decision date: 19 January 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:
1. That part of the application which seeks review of the decisions to deny access to the solicitor's letter of 4 May 2016 (identified in the Notice of Decision as Document 5) and the valuation report dated 7 March 2016 (identified in the Notice of Decision as Document 6) is dismissed.
2. The proceedings are listed for directions at 9.30am on 30 January 2018.
Catchwords: ADMINISTRATIVE LAW – Government information – Where applicant sought review of decision to refuse access to information – Whether that information, to which access was refused, was within the scope of the applicant’s access application – Whether Tribunal has jurisdiction to review decision concerning information which is outside the scope of an access application, where decision made in purported determination of access application
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: The Northern Eruv Incorporated v Ku-Ring-Gai Council [2012] NSWLEC 249
Category: Consequential orders (other than Costs)
Parties: Bhakti Manning (applicant)
Bathurst Regional Council (respondent)
Representation:
Counsel:
JR Willis (respondent)
Solicitors:
Applicant in person
McIntosh McPhillamy & Co (Respondent)

File Number(s): 2017/00247030

notice of decision

This decision concerns the question of whether the information sought by the applicant in these proceedings is information within the scope of her access application to the respondent agency.
I have found that some of the information is within that scope, whilst some is not. I have dismissed that part of the application which concerns the review of the respondent’s decisions refusing access to information which was outside the scope of the applicant’s access application.

Background

The applicant sought access to information held by the respondent (“the Council”) in an application made under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”).
The information to which the applicant sought access was as follows:

“1. Confidential Business Paper relating to Agenda Item 8 of the Bathurst Regional Council meeting of 16th March 2016 “Purchase of Land, West Bathurst” – Section discussing 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 18th May 2016 “Purchase of Land, West Bathurst” – Section discussing 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 5th 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 18th January 2016.
5. A copy of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWCATAD 18
Decision Date: 19 January 2018

CaseChat Overview and Summary

The applicant in this case, Manning, sought a review of a decision by Bathurst Regional Council to deny access to certain information. The dispute was brought before the tribunal to determine whether the information, which was denied access, fell within the scope of the applicant’s initial access application and whether the tribunal had jurisdiction to review a decision concerning information outside the scope of that application. The tribunal was required to decide on two primary legal issues: firstly, whether the information that the council refused to provide was within the scope of the applicant's initial access request; and secondly, whether the tribunal had the authority to review the council's decision regarding information that was outside the scope of the access application.

The tribunal considered whether the information in question, specifically the solicitor's letter and the valuation report, was included in the original access request. It examined whether these documents were relevant and within the scope of the request made by Manning. The tribunal also evaluated whether it had jurisdiction to review the council’s decision concerning information that was not part of the original access request. The tribunal found that the information sought was not within the scope of the original access application and that it did not have jurisdiction to review the decision concerning information that was outside the scope of the request.

Consequently, the tribunal dismissed the part of the application that sought review of the decisions to deny access to the solicitor's letter and the valuation report. The proceedings were scheduled for directions to be held on 30 January 2018 at 9.30am. The tribunal ruled that since the information in question was outside the scope of the original access application, the council's decision was not subject to review by the tribunal.

Orders

Orders of the court

1. That part of the application which seeks review of the decisions to deny access to the solicitor's letter of 4 May 2016 (identified in the Notice of Decision as Document 5) and the valuation report dated 7 March 2016 (identified in the Notice of Decision as Document 6) is dismissed.

2. The proceedings are listed for directions at 9.30am on 30 January 2018.

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 18
Hearing dates:	On the papers
Date of orders:	19 January 2018
Decision date:	19 January 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	1. That part of the application which seeks review of the decisions to deny access to the solicitor's letter of 4 May 2016 (identified in the Notice of Decision as Document 5) and the valuation report dated 7 March 2016 (identified in the Notice of Decision as Document 6) is dismissed. 2. The proceedings are listed for directions at 9.30am on 30 January 2018.
Catchwords:	ADMINISTRATIVE LAW – Government information – Where applicant sought review of decision to refuse access to information – Whether that information, to which access was refused, was within the scope of the applicant’s access application – Whether Tribunal has jurisdiction to review decision concerning information which is outside the scope of an access application, where decision made in purported determination of access application
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:	The Northern Eruv Incorporated v Ku-Ring-Gai Council [2012] NSWLEC 249
Category:	Consequential orders (other than Costs)
Parties:	Bhakti Manning (applicant) Bathurst Regional Council (respondent)
Representation:	Counsel: JR Willis (respondent) Solicitors: Applicant in person McIntosh McPhillamy & Co (Respondent)
File Number(s):	2017/00247030