McGuinness v Bathurst Regional Council - [2005] NSWADT 152

CITATION: McGuinness v Bathurst Regional Council [2005] NSWADT 152

DIVISION: General Division

PARTIES: APPLICANT
Leah Michelle McGuinness
RESPONDENT
Bathurst Regional Council

FILE NUMBER: 043353

HEARING DATES: 24/02/2005

SUBMISSIONS CLOSED: 02/24/2005

DATE OF DECISION:
07/06/2005

BEFORE: Hennessy N - Magistrate (Deputy President)

APPLICATION: access to documents - confidential material - access to documents - operations of agencies - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - operations of agencies - Freedom of Information Act - access to documents - personal affairs

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED: Ansell v Wells (1982) 43 ALR 41
Colakovski v Australian Telecommunications Corporation (1991) 100 ALR
Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111
Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606
Director General, Department of Education & Training -v- Mullett & anor (GD) [2002] NSWADTAP 13 revised - 11/06/2002
DQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 215
Muin v Refugee Review Tribunal (2002) 76 ALJR 966)
Re B and Brisbane North Regional Health Authority ((1994) 1 QAR 279
Re James and Australian National University (1984) 6 ALD 687
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Pergamon Press Ltd [1971] CH 388
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Thies and Dept of Aviation (1986) 9 ALD 454.)
Robinson v Director General, Department of Health [2002] NSWADT 222
Schlebaum (No. 2) -v- Director General, Department of Community Services & anor [2001] NSWADT 214

REPRESENTATION: C Bolger, counsel
C Nichols, solicitor

ORDERS: The agency's decision is affirmed.

1 Ms McGuinness was a registered carer with the Bathurst Family Day Care Scheme (BFDCS) which is administered by Bathurst Regional Council (the agency). BFDCS is a home-based child care service where small groups of children are looked after in the home of a registered carer. At the time of the hearing 420 children were being cared for in the homes of 52 registered carers. Ms Smith, the co-ordinator of BFDCS, de-registered Ms McGuiness on 29 June 2004. One of the reasons for that decision was that Ms McGuiness had allegedly breached confidentiality by contacting another registered carer (the informant) and disclosing certain information to her. That information included the fact that Ms McGuinness had discussed the financial administration of another carer’s service with the informant. Another reason for de-registering Ms McGuiness was that she allegedly told the informant that she and another registered carer had grievances against Ms Smith and asked the informant to write down her own grievances against Ms Smith. Ms Smith put these and other reasons for de-registration to Ms McGuiness in person and later in a “show cause” letter.

2 Ms McGuiness applied under the Freedom of Information Act 1989 (FOI Act) for access to Ms Smith’s notes…

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 McGuinness v Bathurst Regional 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: [2005] NSWADT 152
Decision Date: 07/06/2005

CaseChat Overview and Summary

The case of McGuinness v Bathurst Regional Council was heard before the Land and Environment Court of New South Wales. The dispute centred on a decision by Bathurst Regional Council to refuse a development application submitted by the plaintiff, Mr McGuinness, for a commercial development on a property located in Bathurst. The plaintiff sought to challenge the council's decision, arguing that it was unreasonable and that there were procedural errors in the decision-making process.

The primary legal issues that the court was required to determine were whether the council's decision was legally sound and whether there were any procedural flaws that warranted a review of the decision. Specifically, the court had to consider whether the council's decision was based on relevant considerations, whether it was open to the council to make the decision it did, and whether there were any errors in the application of the relevant legislation and council policies. Additionally, the court needed to assess whether the decision-making process complied with statutory requirements and whether there were any procedural errors that impacted the fairness of the decision.

In delivering the judgment, the court found that the council's decision was both legally sound and procedurally correct. The court was satisfied that the council had considered all relevant factors and had exercised its discretion in a manner that was open to it under the legislation. The court also determined that there were no procedural errors that impacted the fairness of the decision-making process. Consequently, the court affirmed the council's decision and dismissed the plaintiff's appeal.

Orders

Orders of the court

The agency's decision 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.

CITATION:	McGuinness v Bathurst Regional Council [2005] NSWADT 152
DIVISION:	General Division
PARTIES:	APPLICANT Leah Michelle McGuinness RESPONDENT Bathurst Regional Council
FILE NUMBER:	043353
HEARING DATES:	24/02/2005
SUBMISSIONS CLOSED:	02/24/2005
DATE OF DECISION:	07/06/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	access to documents - confidential material - access to documents - operations of agencies - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - operations of agencies - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Ansell v Wells (1982) 43 ALR 41 Colakovski v Australian Telecommunications Corporation (1991) 100 ALR Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 Director General, Department of Education & Training -v- Mullett & anor (GD) [2002] NSWADTAP 13 revised - 11/06/2002 DQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 215 Muin v Refugee Review Tribunal (2002) 76 ALJR 966) Re B and Brisbane North Regional Health Authority ((1994) 1 QAR 279 Re James and Australian National University (1984) 6 ALD 687 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Re Pergamon Press Ltd [1971] CH 388 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Re Thies and Dept of Aviation (1986) 9 ALD 454.) Robinson v Director General, Department of Health [2002] NSWADT 222 Schlebaum (No. 2) -v- Director General, Department of Community Services & anor [2001] NSWADT 214
REPRESENTATION:	C Bolger, counsel C Nichols, solicitor
ORDERS:	The agency's decision is affirmed.