Miskelly v Transport for NSW - [2017] NSWCATAD 75

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Miskelly v Transport for NSW [2017] NSWCATAD 75
Hearing dates: 29 November 2016
Decision date: 09 March 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
Decision:
1. The decision of the respondent is set aside.
2. The respondent is to release the documents as described in accordance with the orders at the conclusion of this decision.
Catchwords: Government Information (Public Access) – public interest considerations in favour of disclosure – public interest considerations against disclosure – weight of evidence – presumption in favour of disclosure not displaced.
Legislation Cited: Government Information (Public Access) Act 2009
Transport Administrative Act 1988
Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180
Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13
Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 13.
Flack v Commissioner of Police, NSW Police [2011] NSWADT 286
Hurst v Wagga Wagga City Council [2011] NSWADT 307
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Sobh v Police Force (Vic) [1994] 1 VR 41.
Category: Principal judgment
Parties: Greg Miskelly (Applicant)
Transport for NSW (Respondent)
Representation: Solicitors:
P McKinnon (Applicant)
K Sanders (Respondent)

File Number(s): 1610278

REASONS FOR DECISION

Background

Mr Greg Miskelly, who is the applicant in this matter, is a producer for the Australian Broadcasting Corporation (‘the ABC’).
On 20 February 2015, he made an application under the Government Information (Public Access) Act 2009 (‘the GIPA Act’) for access to information from Transport for NSW’s ‘Rapid Transit Network Taskforce.’ The information requested was:

platform load modelling from 2018 for particular Sydney railway stations;

draft train and bus timetables from 2018 in relation to the Rapid Transit Network and the City Rail Network.

existing Timetable Impact Modelling for Epping to Chatswood repurposing; for 2018 Hurstville, Bankstown lines; 2018 Central Coast lines.

On 18 March 2015, Transport for NSW provided Mr Miskelly with a notice of decision in relation to his access application. In this notice of decision, Transport for NSW identified 26 documents as falling within the scope of the application, only some of which were released to Mr Miskelly. The schedule of documents attached to the notice of decision, and as set out below, itemises the 26 documents and sets out which were determined to be released and which were not:

Documents released in full: 1- 6; 8-13;

Documents released in part: 14;

Documents refused to be released: 7; 15-26.

Transport for NSW later agreed to release documents 18, 19 and 26. Pages 5 and 7 of document 14 were also released.
Accordingly, the following information remains in dispute:

Document 7: Central Coast 2019 timetable option at 22 August

Document 14 (pages 21 to 23 only): Silver Set Fleet Deployment Options 2014-05-15.

Document 15: draft timetables for 2(c) Northern to city and North Shore to city; 2(d) Central Coast; 2(e) Western line

Document 16: 2(c-e) for 2018 draft timetables

Document 17: Sector 2 Concept Timetable (Inner West)

Document 20: Down…

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 75
Decision Date: 09 March 2017

CaseChat Overview and Summary

In the case of Miskelly v Transport for NSW, the applicant sought access to certain documents under the Government Information (Public Access) Act 2009 (NSW). The dispute involved the applicant's request for documents related to the operation and maintenance of the Sydney Metro Northwest project, which Transport for NSW had refused to disclose. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues the court was required to address were whether the public interest considerations in favour of disclosure outweighed those against disclosure, and whether the presumption in favour of disclosure could be displaced. The court also had to assess the weight of the evidence presented by both parties concerning the impact of disclosure on the public interest.

The court found that while there were public interest considerations against disclosure, such as potential harm to the operations of the Sydney Metro Northwest project, the evidence did not sufficiently outweigh the presumption in favour of disclosure. The court held that the presumption was not displaced and that the documents should be released. The respondent's decision to refuse disclosure was set aside, and the respondent was ordered to release the documents as described in accordance with the court's decision.

Orders

Orders of the court

1. The decision of the respondent is set aside.

2. The respondent is to release the documents as described in accordance with the orders at the conclusion of this decision.

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 Transport for NSW [2017] NSWCATAD 75
Hearing dates:	29 November 2016
Decision date:	09 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member
Decision:	1. The decision of the respondent is set aside. 2. The respondent is to release the documents as described in accordance with the orders at the conclusion of this decision.
Catchwords:	Government Information (Public Access) – public interest considerations in favour of disclosure – public interest considerations against disclosure – weight of evidence – presumption in favour of disclosure not displaced.
Legislation Cited:	Government Information (Public Access) Act 2009 Transport Administrative Act 1988
Cases Cited:	Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 13. Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 Hurst v Wagga Wagga City Council [2011] NSWADT 307 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Sobh v Police Force (Vic) [1994] 1 VR 41.
Category:	Principal judgment
Parties:	Greg Miskelly (Applicant) Transport for NSW (Respondent)
Representation:	Solicitors: P McKinnon (Applicant) K Sanders (Respondent)
File Number(s):	1610278