Mookhey v Infrastructure NSW - [2017] NSWCATAD 345

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Mookhey v Infrastructure NSW [2017] NSWCATAD 345
Hearing dates: On the papers
Date of orders: 29 November 2017
Decision date: 29 November 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:
(1) A hearing is dispensed with and the matter is to be determined on the papers.

(2) The decision of Infrastructure NSW in respect of the information in Documents 1, 5 and 11 is set aside and, in substitution for that decision, Infrastructure NSW is to provide the applicant with access to that information within 28 days of the date of this decision.
(3) The remainder of the application is dismissed on the basis that it has been withdrawn.
Catchwords: ADMINISTRATIVE LAW – Government information – Cabinet information claim – Whether documents prepared for dominant purpose of submission to Cabinet – Whether documents tend to reveal position taken by Minister – Whether documents tend to reveal Cabinet decisions or deliberations
Legislation Cited: Government Information (Public Access) Act 2009 (NSW)
Evidence Act 1995 (NSW)
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Freedom of Information Act 1982 (Cth)
Infrastructure NSW Act 2011 (NSW)
Restart NSW Fund Act 2011 (NSW)
Cases Cited: D'Adam v New South Wales Treasury [2014] NSWCATAD 68
D’Adam v New South Wales Treasury and the Premier of New South Wales [2015] NSWCATAP 61
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301; 78 ALD 645
Searle v Transport for NSW [2017] NSWCATAD 256
Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11
Texts Cited: NSW Treasury “Guidelines for Capital Business Cases: Policy and Guidelines Paper,” December 2008
Category: Principal judgment
Parties: The Hon. Daniel Mookhey MLC (Applicant)
Infrastructure NSW (First Respondent)
NSW Department of Premier & Cabinet (Second Respondent)
Representation: Solicitors:
Neil & Co, Aus Ship Lawyers (Applicant)
NSW Crown Solicitor’s Office (Respondent)

File Number(s): 2016/00378352

REASONS FOR DECISION

This was an application to Infrastructure NSW, under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”), for access to information. Infrastructure NSW claimed that there was an overriding public interest against disclosure of the information because it was Cabinet information.
I have found that Infrastructure NSW has not established reasonable grounds for its claim that the information is Cabinet information. Accordingly, I have decided that the correct and preferable decision is to provide the applicant with access to the information sought.

Background

Infrastructure NSW is a government agency established by s 5 of the Infrastructure NSW Act 2011 (NSW). The functions of Infrastructure NSW include to prepare and submit to the Premier certain infrastructure strategies and plans, to prepare project implementation plans for major infrastructure projects, to review and evaluate proposed major infrastructure projects, to oversee and monitor the delivery of major infrastructure projects and other infrastructure projects and to provide advice to the Premier…

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 345
Decision Date: 29 November 2017

CaseChat Overview and Summary

The case of Mookhey v Infrastructure NSW involved a challenge by the applicant, Mr Mookhey, against the decision of Infrastructure NSW to refuse his request for access to certain documents under the Government Information (Public Access) Act 2009. The applicant sought access to a number of documents prepared by Infrastructure NSW and other agencies, which he believed contained information relevant to his understanding of the processes and decisions made in relation to a particular infrastructure project. The case was heard and determined by the Land and Environment Court of New South Wales.

The central legal issues in the case related to the definition and application of the exemption for Cabinet documents under section 22 of the GIPA Act. Specifically, the court had to determine whether the documents in question were prepared for the dominant purpose of submission to Cabinet, whether they tended to reveal the position taken by a Minister, and whether they tended to reveal Cabinet decisions or deliberations. The court also had to consider whether the documents were subject to the exemption for information that is commercially sensitive under section 23 of the GIPA Act.

In its decision, the court found that the documents in question did not fall within the exemption for Cabinet documents under section 22 of the GIPA Act. The court held that the documents were not prepared for the dominant purpose of submission to Cabinet and did not tend to reveal the position taken by a Minister or Cabinet decisions or deliberations. The court also found that the documents were not subject to the exemption for commercially sensitive information under section 23 of the GIPA Act. As a result, the court set aside the decision of Infrastructure NSW to refuse access to the documents and ordered that access be provided to the applicant within 28 days.

The court dismissed the remainder of the application as it had been withdrawn by the applicant. Overall, the decision in Mookhey v Infrastructure NSW highlights the importance of properly applying the exemptions under the GIPA Act and the need for agencies to carefully consider the public interest in access to government information.

Orders

Orders of the court

(1) A hearing is dispensed with and the matter is to be determined on the papers.

(2) The decision of Infrastructure NSW in respect of the information in Documents 1, 5 and 11 is set aside and, in substitution for that decision, Infrastructure NSW is to provide the applicant with access to that information within 28 days of the date of this decision.

(3) The remainder of the application is dismissed on the basis that it has been withdrawn.

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:	Mookhey v Infrastructure NSW [2017] NSWCATAD 345
Hearing dates:	On the papers
Date of orders:	29 November 2017
Decision date:	29 November 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	(1) A hearing is dispensed with and the matter is to be determined on the papers. (2) The decision of Infrastructure NSW in respect of the information in Documents 1, 5 and 11 is set aside and, in substitution for that decision, Infrastructure NSW is to provide the applicant with access to that information within 28 days of the date of this decision. (3) The remainder of the application is dismissed on the basis that it has been withdrawn.
Catchwords:	ADMINISTRATIVE LAW – Government information – Cabinet information claim – Whether documents prepared for dominant purpose of submission to Cabinet – Whether documents tend to reveal position taken by Minister – Whether documents tend to reveal Cabinet decisions or deliberations
Legislation Cited:	Government Information (Public Access) Act 2009 (NSW) Evidence Act 1995 (NSW) Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Freedom of Information Act 1982 (Cth) Infrastructure NSW Act 2011 (NSW) Restart NSW Fund Act 2011 (NSW)
Cases Cited:	D'Adam v New South Wales Treasury [2014] NSWCATAD 68 D’Adam v New South Wales Treasury and the Premier of New South Wales [2015] NSWCATAP 61 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301; 78 ALD 645 Searle v Transport for NSW [2017] NSWCATAD 256 Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11
Texts Cited:	NSW Treasury “Guidelines for Capital Business Cases: Policy and Guidelines Paper,” December 2008
Category:	Principal judgment
Parties:	The Hon. Daniel Mookhey MLC (Applicant) Infrastructure NSW (First Respondent) NSW Department of Premier & Cabinet (Second Respondent)
Representation:	Solicitors: Neil & Co, Aus Ship Lawyers (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00378352