McKay v Transport for NSW - [2017] NSWCATAD 212

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: McKay v Transport for NSW [2017] NSWCATAD 212
Hearing dates: 20 - 21 March 2017
Date of orders: 30 June 2017
Decision date: 30 June 2017
Before: D Dinnen, Senior Member
Decision:
(1)   I affirm the reviewable decision in relation to the classification of each of Documents 1, 3-10, 12-23, 28-29 and 31-34 as Cabinet information;

(2)   I affirm the reviewable decision in relation to the classification of Documents 26 and 27 as subject to parliamentary privilege and a conclusive presumption that there is an overriding public interest against disclosure, and refuse access to those documents;

(3)   I set aside the First Respondent’s reviewable decision in relation to Documents 11, 24, 25, 30 and 35, and substitute my decision in relation to those documents, granting access to Documents 11 and 25, and refusing access to Documents 24, 30 and 35 at this time;

(4) I set aside the balance of the reviewable decision and remit the matter back to the First Respondent in accordance with s63(3)(d) of the ADR Act in accordance with the following directions:

(a) First Respondent to reconsider its reviewable decision with specific reference to the requirements of s53 of the GIPA Act, conducting additional searches and identifying the nature and extent of the searches it has conducted in response to the Applicant’s access application, by 31 July 2017.
(b)   Matter is listed for directions Tuesday 15 August 2017 at 9:30am.
Catchwords: Government information – cabinet information – reasonable grounds – cabinet submissions – dominant purpose – cabinet deliberations or decisions – minister’s position – parliamentary privilege – public interest considerations in favour of disclosure – public interest considerations against disclosure – confidentiality – breach of confidence – legitimate business, commercial, professional or financial interests – unfair advantage or disadvantage – correct and preferable decision
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Evidence Act 1995
Government Information (Public Access) Act 2009
Parliamentary Privileges Act 1987
Cases Cited: Bennison v Department of Premier and Cabinet [2016] NSWCATAD 101
D’Adam v New South Wales [2014] NSWCATAD 68
D'Adam v New South Wales Treasury [2015] NSWCATAP 61
Gold and Copper Resource Pty Limited v NSW Trade and Investment [2016] NSWCATAD 267
Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5
Tebutt v Minister for Lands and Water [2015] NSWCATAD 95
Category: Principal judgment
Parties: The Hon. Jodi McKay MP (Applicant)
Transport for NSW (First Respondent)
The Premier of NSW (Second Respondent)
Information Commissioner (Third Respondent)
Representation:
Counsel:
S Lees (Applicant)
C Winnett (First and Second Respondents)
Solicitors:
Slater and Gordon Lawyers (Applicant)
NSW Crown Solicitor’s Office (First and Second Respondents)
NSW Information and Privacy Commission (Third Respondent)

File Number(s): 2016/00378462
Publication restriction: None

REASONS FOR DECISION

Background

By application received by Transport for NSW (“the First Respondent” or “TfNSW”) on 6 July 2016, the applicant sought access to the following information (“the access application”) under the Government Information (Public Access) Act

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: [2017] NSWCATAD 212
Decision Date: 30 June 2017

CaseChat Overview and Summary

The applicant, McKay, sought access to certain documents held by Transport for NSW under the Government Information (Public Access) Act 2009 (NSW) and the Archives Act 1983 (NSW). The dispute was about the classification of these documents and the decision to deny access. The matter was heard by the Administrative Decisions Tribunal of New South Wales.

The legal issues before the court involved the classification of the documents, the application of exemptions under the GIPA Act, and the assessment of public interest considerations. The court needed to determine whether certain documents were indeed exempt from disclosure under the GIPA Act, specifically whether they were cabinet documents or subject to parliamentary privilege.

The court examined each document's classification and the rationale behind it, considering the dominant purpose test and relevant exemptions. It found that some documents were correctly classified as cabinet documents and others as subject to parliamentary privilege, while others were improperly classified. The court emphasised the importance of conducting thorough searches to identify relevant documents and considering public interest factors in the decision-making process. The court set aside certain classifications and granted or denied access to specific documents accordingly. It also directed the respondent to conduct further searches and reconsider the matter, with a new deadline and a directions hearing set for August 2017.

Orders

Orders of the court

(1) I affirm the reviewable decision in relation to the classification of each of Documents 1, 3-10, 12-23, 28-29 and 31-34 as Cabinet information;

(2) I affirm the reviewable decision in relation to the classification of Documents 26 and 27 as subject to parliamentary privilege and a conclusive presumption that there is an overriding public interest against disclosure, and refuse access to those documents;

(3) I set aside the First Respondent’s reviewable decision in relation to Documents 11, 24, 25, 30 and 35, and substitute my decision in relation to those documents, granting access to Documents 11 and 25, and refusing access to Documents 24, 30 and 35 at this time;

(4) I set aside the balance of the reviewable decision and remit the matter back to the First Respondent in accordance with s63(3)(d) of the ADR Act in accordance with the following directions:

(a) First Respondent to reconsider its reviewable decision with specific reference to the requirements of s53 of the GIPA Act, conducting additional searches and identifying the nature and extent of the searches it has conducted in response to the Applicant’s access application, by 31 July 2017.

(b) Matter is listed for directions Tuesday 15 August 2017 at 9:30am.

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

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Medium Neutral Citation:	McKay v Transport for NSW [2017] NSWCATAD 212
Hearing dates:	20 - 21 March 2017
Date of orders:	30 June 2017
Decision date:	30 June 2017
Before:	D Dinnen, Senior Member
Decision:	(1) I affirm the reviewable decision in relation to the classification of each of Documents 1, 3-10, 12-23, 28-29 and 31-34 as Cabinet information; (2) I affirm the reviewable decision in relation to the classification of Documents 26 and 27 as subject to parliamentary privilege and a conclusive presumption that there is an overriding public interest against disclosure, and refuse access to those documents; (3) I set aside the First Respondent’s reviewable decision in relation to Documents 11, 24, 25, 30 and 35, and substitute my decision in relation to those documents, granting access to Documents 11 and 25, and refusing access to Documents 24, 30 and 35 at this time; (4) I set aside the balance of the reviewable decision and remit the matter back to the First Respondent in accordance with s63(3)(d) of the ADR Act in accordance with the following directions: (a) First Respondent to reconsider its reviewable decision with specific reference to the requirements of s53 of the GIPA Act, conducting additional searches and identifying the nature and extent of the searches it has conducted in response to the Applicant’s access application, by 31 July 2017. (b) Matter is listed for directions Tuesday 15 August 2017 at 9:30am.
Catchwords:	Government information – cabinet information – reasonable grounds – cabinet submissions – dominant purpose – cabinet deliberations or decisions – minister’s position – parliamentary privilege – public interest considerations in favour of disclosure – public interest considerations against disclosure – confidentiality – breach of confidence – legitimate business, commercial, professional or financial interests – unfair advantage or disadvantage – correct and preferable decision
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Government Information (Public Access) Act 2009 Parliamentary Privileges Act 1987
Cases Cited:	Bennison v Department of Premier and Cabinet [2016] NSWCATAD 101 D’Adam v New South Wales [2014] NSWCATAD 68 D'Adam v New South Wales Treasury [2015] NSWCATAP 61 Gold and Copper Resource Pty Limited v NSW Trade and Investment [2016] NSWCATAD 267 Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 Tebutt v Minister for Lands and Water [2015] NSWCATAD 95
Category:	Principal judgment
Parties:	The Hon. Jodi McKay MP (Applicant) Transport for NSW (First Respondent) The Premier of NSW (Second Respondent) Information Commissioner (Third Respondent)
Representation:	Counsel: S Lees (Applicant) C Winnett (First and Second Respondents) Solicitors: Slater and Gordon Lawyers (Applicant) NSW Crown Solicitor’s Office (First and Second Respondents) NSW Information and Privacy Commission (Third Respondent)
File Number(s):	2016/00378462
Publication restriction:	None