Miskelly v Roads and Maritime Services - [2019] NSWCATAD 133

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 123
Texts Cited: Nil
Category: Principal judgment
Parties: Greg Miskelly (Applicant)
Roads and Maritime Services (First Respondent)
Premier of NSW (Second Respondent)
Representation:
Counsel:
D Birch (Respondent)
Solicitors:
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

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.
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.
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…

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: [2019] NSWCATAD 133
Decision Date: 10 July 2019

CaseChat Overview and Summary

In Miskelly v Roads and Maritime Services, the applicant sought a review of the respondent's decision to refuse access to certain government documents under the Government Information (Public Access) Act 2009 (GIPA). The applicant, Miskelly, argued that the documents, which were related to the decision-making processes of the respondent, were not protected by the 'cabinet information' exemption. The case was heard and determined in the Land and Environment Court of New South Wales, with the primary focus being the interpretation and application of the GIPA provisions.

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

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:	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 123
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Greg Miskelly (Applicant) Roads and Maritime Services (First Respondent) Premier of NSW (Second Respondent)
Representation:	Counsel: D Birch (Respondent) Solicitors: 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.