Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Miskelly v Roads and Maritime Services [2019] NSWCATAD 133 Hearing dates: 29 January 2019 Date of orders: 10 July 2019 Decision date: 10 July 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member Decision: (1) The decision of the respondent in regard to Documents 1, 2, 3, S1 and S3 is affirmed.
(2) The applicant’s application is otherwise dismissed.Catchwords: ADMINISTRATIVE LAW – access to government information – cabinet information
ADMINISTRATIVE LAW – whether the Tribunal has jurisdiction to review a decision of an agency that information is ‘out of scope’Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Government Information (Public Access) Act 2009 (NSW)Cases Cited: D’Adam v New South Wales Treasury [2014] NSWCATAD 68
Fisse v Secretary, Department of the Treasury [2008] FCAFC 188
Flack v Commissioner of Police, New South Police [2011] NSWADT 286
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Ku-ring-gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181
Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353
Transport for NSW v Robinson [2018] NSWCATAP 123Texts Cited: Nil Category: Principal judgment Parties: Greg Miskelly (Applicant)
Roads and Maritime Services (First Respondent)
Premier of NSW (Second Respondent)Representation: Counsel:
Solicitors:
D Birch (Respondent)
G Miskelly (Applicant in person)
Crown Solicitor (Respondent)
File Number(s): 2018/00279941 Publication restriction: Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure to the applicant and any member of the public of evidence (including documents) provided to the Tribunal and given in confidence during the course of the hearing is prohibited.
reasons for decision
Introduction
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The applicant, Greg Miskelly, seeks review of a decision of the first respondent, Roads and Maritime Services (RMS), to refuse him access to specified information it holds concerning the costs/budget estimates for the Sydney Gateway Project. The applicant sought access to this information under the provisions of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). He contends that there is a manifestly overwhelming public interest in the disclosure of this information so that members of the public can know the estimated to costs of this major public infrastructure project.
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The information in issue is contained in 24 documents, which RMS has conveniently marked as Document 1 through to Document 3 and Document S1 through to Document S21. I have used the same numbering in this decision.
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In regard to the information in Documents 1, 2, 3, S1 and S3, RMS refused access to the information in these documents on the grounds that there is a conclusively presumed overriding public interest against disclosure because it is ‘Cabinet information’: see GIPA Act, s 14(1) and Sch 1, cl 2. As the documents in dispute include documents for which there is a claim of ‘Cabinet information’, the Premier is also a party to these proceedings and has a right to be heard: see GIPA…
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- Case
- [2019] NSWCATAD 133
- Decision Date
CaseChat Overview and Summary
The legal issues that arose for determination by the court were whether the Tribunal had jurisdiction to review the respondent's decision that certain information was 'out of scope' and whether the 'cabinet information' exemption correctly applied to the documents in question. The court was required to assess the scope of the Tribunal's jurisdiction under GIPA and the applicability of the 'cabinet information' exemption, particularly in relation to documents that may have been prepared for cabinet or privy to cabinet deliberations.
The court found that the Tribunal did have jurisdiction to review the decision that the information was 'out of scope', and it proceeded to consider the 'cabinet information' exemption. The court determined that the documents in question were indeed privy to cabinet deliberations and thus appropriately withheld under the exemption. The court held that the respondent's decision was correct and affirmed the decision regarding the documents in question. Consequently, the applicant's application for review was dismissed, except in respect of the affirmation of the respondent's decision concerning the specified documents.
Orders
Orders of the court
(1) The decision of the respondent in regard to Documents 1, 2, 3, S1 and S3 is affirmed.
(2) The applicant’s application is otherwise dismissed.
Background
Background to the litigation
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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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