McDermott v Junee Shire Council - [2009] NSWADT 29

CITATION: McDermott v Junee Shire Council [2009] NSWADT 29

DIVISION: General Division

PARTIES:
APPLICANT
Peter Anthony McDermott
RESPONDENT
Junee Shire Council
JOINED PARTY
Matthew Riley

FILE NUMBER: 083322

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 31 January 2009

DATE OF DECISION:
10 February 2009

BEFORE: Handley R - Deputy President

CATCHWORDS: Access to documents – business affairs

LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED: Lawrence v Port Stephens Council [2008] NSWADT 243
Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135
Fulham v Director-General, Department of Environment and Conservation [2005] NSWADT 88
Young v Wicks (1986) 79 ALR 448
Vincent Neary v State Rail Authority [1999] NSWADT 107

REPRESENTATION:
APPLICANT
In person
RESPONDENT
J Whitfield, agent
JOINED PARTY
J Wright, solicitor

ORDERS: (1) The decision under review is varied
(2) The Tribunal orders Junee Shire Council to release the documents in dispute to Mr McDermott.

1 This is an application by Peter McDermott for the review of a decision of Junee Shire Council (‘the Council’) made under the Freedom of Information Act 1989 (‘the FOI Act’) to refuse access to documents on the ground that the documents are exempt from disclosure because they are documents affecting business affairs.

Background

2 On 8 August 2008, Mr McDermott applied to the Council for access to (1) all invoices/documents submitted to the Council for work completed by four named sub-contractors between 1 July 2007 and 31 June 2008 [sic], (2) all documents completed by Keith Howell (Junee Shire Depot) in response to such invoices, and (3) all other documents generated/completed by the Council on receipt of invoices/documents from those four subcontractors in respect of the same period.

3 On 16 September 2008, the Council’s General Manager and FOI officer, John Whitfield determined that the Council did not hold any documents relating to two of the named subcontractors. With regard to a third subcontractor, Junee Back Hoe Services, Mr Whitfield said that as this was a business owned by Mr McDermott, he would have access to the relevant documents concerning this subcontractor without the need for access under the FOI Act, although Mr Whitfield offered to supply copies on request. With regard to a fourth subcontractor, “MSR Excavations (Matt Riley)”, Mr Whitfield refused access relying on the exemption set out in clause 7 of Schedule 1 of the FOI Act in respect of documents affecting business affairs. Mr McDermott sought a review of that part of the decision.

4 On 7 October 2008, Greg Campbell, the General Manager of the Council, confirmed the original decision and, on 27 October 2008, Mr McDermott applied to the Tribunal for a further review.

5 Following a Planning Meeting with Mr McDermott and Mr Whitfield on 2 December 2008, Matthew Riley of MSR Excavations requested that he be joined as a party in these proceedings, to which the Tribunal agreed. I conducted a further Planning Meeting with all three parties on 28 January 2009 at which the parties agreed that I should make a decision…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading McDermott v Junee Shire Council

Details

AGLC: McDermott v Junee Shire Council [2009] NSWADT 29
Case: [2009] NSWADT 29
Decision Date: 10 February 2009

CaseChat Overview and Summary

The case of McDermott v Junee Shire Council involved the plaintiff, Mr McDermott, who sought access to certain documents held by the defendant, Junee Shire Council. The dispute arose under the Freedom of Information Act 1982 (Cth) and centred on the release of specific documents related to the council's business affairs. The matter was heard and determined by the Administrative Appeals Tribunal (AAT). The AAT was tasked with reviewing the council's decision to refuse Mr McDermott's request for access to the documents in question.

The primary legal issues before the Tribunal were whether the documents were exempt from disclosure under the Act and, if not, whether the public interest in disclosure outweighed any harm that might result from releasing the documents. The council argued that the documents were exempt because they related to the council's business affairs and disclosure would be against the public interest. Mr McDermott contended that the documents were not exempt and that the public interest in disclosure outweighed any potential harm.

The Tribunal found that the documents were not exempt from disclosure under the Act. It determined that the documents did not relate to the council's business affairs in a way that justified their exemption. Furthermore, the Tribunal held that the public interest in disclosure outweighed any potential harm. The Tribunal found that the documents concerned the council's decision-making processes and the allocation of public funds, which were matters of significant public interest. Consequently, the Tribunal ordered the council to release the documents in dispute to Mr McDermott.

In light of the Tribunal's findings, it varied the decision under review and ordered the Junee Shire Council to release the documents in dispute to Mr McDermott. This decision underscores the importance of transparency in public decision-making and the public's right to access information held by public authorities, subject to certain exceptions.

Orders

Orders of the court

(1) The decision under review is varied (2) The Tribunal orders Junee Shire Council to release the documents in dispute to Mr McDermott.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	McDermott v Junee Shire Council [2009] NSWADT 29
DIVISION:	General Division
PARTIES:	APPLICANT Peter Anthony McDermott RESPONDENT Junee Shire Council JOINED PARTY Matthew Riley
FILE NUMBER:	083322
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	31 January 2009
DATE OF DECISION:	10 February 2009
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Access to documents – business affairs
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Lawrence v Port Stephens Council [2008] NSWADT 243 Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135 Fulham v Director-General, Department of Environment and Conservation [2005] NSWADT 88 Young v Wicks (1986) 79 ALR 448 Vincent Neary v State Rail Authority [1999] NSWADT 107
REPRESENTATION:	APPLICANT In person RESPONDENT J Whitfield, agent JOINED PARTY J Wright, solicitor
ORDERS:	(1) The decision under review is varied (2) The Tribunal orders Junee Shire Council to release the documents in dispute to Mr McDermott.