McAlary v Yass Valley Council - [2024] NSWCATAD 183

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: McAlary v Yass Valley Council [2024] NSWCATAD 183
Hearing dates: 6 June 2024
Date of orders: 5 July 2024
Decision date: 05 July 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: EA MacIntyre, Senior Member
Decision:
(1) The decision of the Respondent is set aside.
(2) Document 1 to be provided to the Applicant within 28 days of this decision, with no redactions to part 2.3 other than redactions of information identifying unsuccessful tenderers, with other parts to be provided as redacted by the Respondent.
(3) The decision of the Respondent not to provide Document 48 is affirmed.
(4) The decision of the Respondent to provide Documents 18, 21, 22, 23, 24, 25, 31, 32 and 44 in the form redacted by the Respondent is affirmed.
(5) The decision of the Respondent to provide the remaining documents without redaction is affirmed.

Catchwords:
ADMINISTRATIVE LAW - administrative review - government information - access application - enforceable right to access government information - presumption in favour of the disclosure of government information - overriding public interest against disclosure - public interest considerations against disclosure - public interest considerations in favour of disclosure - balance - confidential information - term ‘could reasonably be expected’ - deliberation or consultation conducted, or an opinion, advice or recommendation - prejudice to effective exercise by an agency of functions - evidence - local authority - terms of loan
ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

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:
Battin v University of New England [2013] NSWADT 73
Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Else v Transport for NSW [2021] NSWCATAD 59
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Leech v Sydney Water Corporation [2010] NSWADT 298
Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71
Sergent v Land and Property Management Authority [2010] NSWADT 50

Texts Cited:
None

Category: Principal judgment
Parties: Luke McAlary (Applicant)
Yass Valley Council (Respondent)
Representation:
Counsel:
Respondent: D Robertson (Respondent)

Applicant: (Self represented)
Solicitors:
Yass Valley Council (Respondent)

File Number(s): 2024/00017968
Publication restriction: None

REASONS FOR DECISION

This is a review of a decision made by the Yass Valley Council (“Respondent”) to refuse access to certain information. The information sought by the applicant, Mr Luke McAlary (“Applicant”) is the terms of a loan under which the Respondent agreed to borrow certain money.

Background

The Applicant sought information from the Respondent concerning the “Crago Mills Redevelopment Project”. This project relates to the construction of new offices for the Respondent and public facilities at Yass in New South Wales. The information sought included information about arrangements for financing the project.
The Respondent, on…

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.

Keep reading for free

Create a free CaseChat account to read McAlary v Yass Valley Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWCATAD 183
Decision Date: 05 July 2024

CaseChat Overview and Summary

McAlary v Yass Valley Council was a case before the Civil and Administrative Tribunal (CAT) in New South Wales. The Applicant, Mr McAlary, sought access to certain documents under the Government Information (Public Access) Act 2009 (NSW). The dispute centred on the refusal by Yass Valley Council to provide certain documents in full or at all, claiming that disclosure would harm the public interest. The Applicant challenged this decision, seeking a review of the Council's actions.

The legal issues before the Tribunal included whether the Council had correctly exercised its discretion to refuse disclosure under the Act, whether the presumption in favour of disclosure was properly balanced against the claimed public interest, and whether the term 'could reasonably be expected' in the Act was correctly interpreted. Additionally, the Tribunal had to consider whether certain information was confidential and whether redactions were necessary to protect public interest considerations.

The Tribunal found that the Council had not correctly exercised its discretion under the Act. The presumption in favour of disclosure was not adequately balanced against the claimed public interest. The Tribunal held that the term 'could reasonably be expected' required a reasonable expectation based on the circumstances, not merely a possibility. It was determined that the Council had not adequately demonstrated that disclosure would result in harm to the public interest. Consequently, the Tribunal set aside the Council's decision to withhold certain documents and ordered their release with specific redactions to protect sensitive information.

The Tribunal also upheld the Council's decision to withhold other documents and to redact certain parts of other documents, finding that these decisions were justified under the Act. The Tribunal ordered the Council to provide the remaining documents without redaction, as the public interest did not outweigh the right to access.

Orders

Orders of the court

(1) The decision of the Respondent is set aside.

(2) Document 1 to be provided to the Applicant within 28 days of this decision, with no redactions to part 2.3 other than redactions of information identifying unsuccessful tenderers, with other parts to be provided as redacted by the Respondent.

(3) The decision of the Respondent not to provide Document 48 is affirmed.

(4) The decision of the Respondent to provide Documents 18, 21, 22, 23, 24, 25, 31, 32 and 44 in the form redacted by the Respondent is affirmed.

(5) The decision of the Respondent to provide the remaining documents without redaction 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:	McAlary v Yass Valley Council [2024] NSWCATAD 183
Hearing dates:	6 June 2024
Date of orders:	5 July 2024
Decision date:	05 July 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	EA MacIntyre, Senior Member
Decision:	(1) The decision of the Respondent is set aside. (2) Document 1 to be provided to the Applicant within 28 days of this decision, with no redactions to part 2.3 other than redactions of information identifying unsuccessful tenderers, with other parts to be provided as redacted by the Respondent. (3) The decision of the Respondent not to provide Document 48 is affirmed. (4) The decision of the Respondent to provide Documents 18, 21, 22, 23, 24, 25, 31, 32 and 44 in the form redacted by the Respondent is affirmed. (5) The decision of the Respondent to provide the remaining documents without redaction is affirmed.
Catchwords:	ADMINISTRATIVE LAW - administrative review - government information - access application - enforceable right to access government information - presumption in favour of the disclosure of government information - overriding public interest against disclosure - public interest considerations against disclosure - public interest considerations in favour of disclosure - balance - confidential information - term ‘could reasonably be expected’ - deliberation or consultation conducted, or an opinion, advice or recommendation - prejudice to effective exercise by an agency of functions - evidence - local authority - terms of loan ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal
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:	Battin v University of New England [2013] NSWADT 73 Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Else v Transport for NSW [2021] NSWCATAD 59 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Leech v Sydney Water Corporation [2010] NSWADT 298 Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71 Sergent v Land and Property Management Authority [2010] NSWADT 50
Texts Cited:	None
Category:	Principal judgment
Parties:	Luke McAlary (Applicant) Yass Valley Council (Respondent)
Representation:	Counsel: Respondent: D Robertson (Respondent) Applicant: (Self represented) Solicitors: Yass Valley Council (Respondent)
File Number(s):	2024/00017968
Publication restriction:	None