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Moran v Shellharbour City Council

Moran v Shellharbour City Council

Case [2022] NSWCATAD 112 5 April 2022

Judicial Review

Public Interest

Government Information

Administrative Law

Type to search within this case.

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Moran v Shellharbour City Council [2022] NSWCATAD 112
Hearing dates: 13 August 2021
Date of orders: 05 April 2022
Decision date: 05 April 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Mulvey, Senior Member
Decision:
The decision made by the Respondent on 16 March 2021 is affirmed.

Catchwords:
GOVERNMENT INFORMATION - Government Information (Public Access) Act 2009 – public interest against disclosure – frivolous – vexatious - misconceived - lacking in substance

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act (NSW)
Government and Information (Public Access) Act 2009 (NSW)
Government Information (Information Commissioner) Act 2009 (NSW)
Local Government Act 1993
Local Government (General) Regulation 2005, the New South Wales Government Code of Practice for Procurement (2005)

Cases Cited:
Ansoul v City of Sydney [2017] NSWCATAD 65
Attorney-General v Wentworth (1998) 14 NSWLR 481
BDK v Department of Education and Communities [2015] NSWCATAP 129
Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD 114
Choi v University of Technology Sydney [2009] NSWCATAD 176
Clarke v Blacktown City Council [2013] NSWADT 36
Fernley v Health Care Complaints Commission [2020] NSWCATAD 30
Hurst v Wagga Wagga City Council [2011] NSWADT 307
JY v Commissioner for Police, New South Wales (2008) NSWADT 306
Lock the Gate Alliance v Department of Planning and Environment and Department of Premier and Cabinet [2019] NSWCATAD 6
McKean v Attorney-General and Justice [2015] NSWCATAD 176
McKinnon v Blacktown City Council [2012] NSWADT 44
Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71
Miriani v Transport for New South Wales [2021] NSWCATAD 16
O’Grady v Sutherland Shire Council (2020) NSWCATAD 50
Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277
Raven v The University of Sydney [2015] NSWCATAD 104
Shenhua Watermark Co Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119
Taylor v Destination NSW [2020] NSWCATAD 137
Walker v Pittwater Council [2016] NSWCATAD 78
Zonnevylle v NSW Department of Justice [2021] NSWCAT 175

Category: Principal judgment
Parties: Peter Moran (Applicant)
Shellharbour City Council (Respondent)
Information Commissioner (Intervenor)
Representation:
Counsel:
Mr J Farrell – Respondent
Solicitor:
Applicant self-represented
J Boyd – Vee Aviation (third party)
R Wilkins – Information Commissioner

File Number(s): 2021/104058
Publication restriction: Pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) – disclosure of the documents and information contained in the Confidential Bundles filed on 24 June 2021, 26 July 2021 and 25 August 2021 is prohibited.

REASONS FOR DECISION

The Background

Mr Moran (the Applicant) was at all material times a Councillor on Shellharbour City Council (the Respondent). The Applicant became aware of information tabled at two Council meetings on 23 July 2019 and 19 November 2019 which were the subject of an application made by him under the Government and Information (Public Access) Act 2009 (NSW) (the GIPA Act). The GIPA Act application was lodged with…

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.

Continue reading Moran v Shellharbour City Council

Details

AGLC: Moran v Shellharbour City Council [2022] NSWCATAD 112
Case: [2022] NSWCATAD 112
Decision Date: 05 April 2022

CaseChat Overview and Summary

In the matter of Moran v Shellharbour City Council, the plaintiff sought the disclosure of certain documents from the defendant under the Government Information (Public Access) Act 2009. The plaintiff, Mr Moran, had requested information regarding the council's decision-making processes. The Council refused to provide the documents, deeming the request to be frivolous, vexatious, misconceived, and lacking in substance. Dissatisfied with the Council's response, Mr Moran took the matter to the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the Council's refusal to disclose the requested documents was justified under the Government Information (Public Access) Act 2009. Specifically, the court needed to determine if the request was frivolous, vexatious, misconceived, or lacking in substance, and whether these factors warranted the denial of access to the information. The court also had to consider the scope of discretion available to the council under the Act in determining the validity of their decision.

The court found that the Council's decision to refuse disclosure was well-founded. It was determined that Mr Moran's request was indeed frivolous, vexatious, misconceived, and lacking in substance. The court held that the Council had the authority to deny access to information under these circumstances, as provided by the Act. The Council's decision was reasonable and in line with the provisions of the Act, and thus, the court affirmed the decision made by the Council on 16 March 2021. The court did not find it necessary to order any further action from the Council.

Orders

Orders of the court

The decision made by the Respondent on 16 March 2021 is affirmed.

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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Citations

AGLC Citation

Moran v Shellharbour City Council [2022] NSWCATAD 112

Most Recent Citation

Goodenough v Coffs Harbour City Council [2024] NSWCATAD 276

Cases citing this decision · 3 of 3 shown

Darley v City of Parramatta (No 2)
[2025] NSWCATAD 86 Para 175

…Further, in Moran v Shellharbour City Council [2022] NSWCATAD 112, the Tribunal stated, relevantly:…
Goodenough v Coffs Harbour City Council (No 2)
[2024] NSWCATAD 313

…ey Shire Council [2022] NSWCATAD 39 McKean v Attorney-General and Justice [2015] NSWCATAD 176 Moran v Shellharbour City Council [2022] NSWCATAD 112 Optus Networks Pty Ltd v Telstra Corp Ltd (2010) 265 ALR 281 Parry-Jones v Law Society [1968] 1 All ER 177; Smith Kline & French Laboratories (Aust) Ltd v Secretary, Depar…
Goodenough v Coffs Harbour City Council
[2024] NSWCATAD 276 Para 268

…to whether there would be a breach in the circumstances of item 1(g) without reference to s 113. To the extent that Moran v Shellharbour City Council [2022] NSWCATAD 112 held differently, I do not accept that interpretation.…

View all 3 citing cases →

Cases cited in this decision · 19 of 19 shown

Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice
[2021] NSWCATAD 114 Para 66

…those various competing public interest considerations. See, Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD 114 at [21].…
Miriani v Transport for NSW
[2021] NSWCATAD 16 Para 67

…, is not generally concerned with the motivation of applicants seeking access to government information. See, Miriani v Transport for New South Wales [2021] NSWCATAD 16 ( Miriani ) at [24]. The Tribunal in Miriani at [25] stated that:…
Taylor v Destination NSW
[2020] NSWCATAD 137 Para 52

…ure. The Tribunal has affirmed that an overriding public interest against disclosure is the only restriction on access: see, Taylor v Destination NSW [2020] NSWCATAD 137 at [6].…
Fearnley v Health Care Complaints Commission
[2020] NSWCATAD 30 Para 32

…In Fernley v Health Care Complaints Commission [2020] NSWCATAD 30 (at [64]), the Tribunal referred to Attorney-General v Wentworth (1998) 14 NSWLR 481 (at [491]):…
Shenhua Watermark Coal Pty Limited v Department of Planning and Environment
[2019] NSWCATAD 119 Para 127

…In Shenhua Watermark Co Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119, the Tribunal found when assessing the public interest consideration at [45]:…
Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet
[2019] NSWCATAD 6 Para 103

…following causes of action could be taken (see Lock the Gate Alliance v Department of Planning and Environment and Department of Premier and Cabinet [2019] NSWCATAD 6 (at [139]):…
Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW
[2017] NSWCATAD 71 Para 120

…e would give a competitor an insight in the business of the documents’ owner’ see Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71 at [135].…
Ansoul v City of Sydney
[2017] NSWCATAD 65 Para 92

…The word ‘prejudice’ was given the following meaning in Ansoul v City of Sydney [2017] NSWCATAD 65 (at [33]):…
Eyes v Central Coast Council
[2016] NSWCATAD 306 Para 3

…e profitability or viability of a continuing business operation, or a pending ‘one-off’ commercial transaction: see, Eyes v Central Coast Council [2016] NSWCATAD 306 at [54], citing Seeney and Department of State Development [2004] Ql Cmr 4 at [36].…
Walker v Pittwater Council
[2016] NSWCATAD 78 Para 3

…us’, conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings. In Walker v Pittwater Council [2016] NSWCATAD 78, Hennessy DP (as she then was) considered the provisions of s110(5A)(b) of the GIPA Act and found:…
McKean v Attorney-General and Justice
[2015] NSWCATAD 176 Para 57

…Individual interests in seeking information may coincide with the public interest. In McKean v Attorney-General and Justice [2015] NSWCATAD 176 at [34], the Tribunal found that an applicant’s interest in seeking access to information for reasons extraneous to himself, coincided with the benefits that arise from public…
Raven v The University of Sydney
[2015] NSWCATAD 104 Para 90

…‘Confidential information’ is information ‘which is not to be disclosed in ordinary circumstances’: see, Raven v The University of Sydney [2015] NSWCATAD 104 at [62]. This is applicable where the information has been supplied under an express or implied pledge of confidentiality.…
Clarke v Blacktown City Council
[2013] NSWADT 36 Para 147

…In Clarke v Blacktown City Council [2013] NSWADT 36, the Tribunal (at [67]) found, which I adopt:…
McKinnon v Blacktown City Council
[2012] NSWADT 44 Para 91

…e particular case. Labelling and treatment of information is confidential and not conclusive of this question: see, McKinnon v Blacktown City Council [2012] NSWADT 44 at [55].…
Hurst v Wagga Wagga City Council
[2011] NSWADT 307 Para 126

…In Hurst v Wagga Wagga City Council [2011] NSWADT 307 the Tribunal found that ‘prejudice’ meant ‘to cause detriment or disadvantage’.…
Sergent v Land and Property Management Authority
[2010] NSWADT 50 Para 4

…usiness may also have commercial value: see, Neary v State Rail Authority [1999] NSWADT 107 at [42]; Sergent v Land and Property Management Authority [2010] NSWADT 50 at [53]. The Respondent refers to and relies upon submissions made by Vee H on 27 July 2020 where it states:…
Public Service Assn v Premier's Department
[2002] NSWADT 277 Para 104

…dministrative Decisions Tribunal: Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277 (at [53]), five matters were identified by the Tribunal which are to be established for a hypothetical equitable action for a breach of confidence. The…
Neary v State Rail Authority
[1999] NSWADT 107 Para 4

…resulted from the investment of significant research, time and effort by a business may also have commercial value: see, Neary v State Rail Authority [1999] NSWADT 107 at [42]; Sergent v Land and Property Management Authority [2010] NSWADT 50 at [53]. The Respondent refers to and relies upon submissions made by Vee…
Choi v University of Technology Sydney
[2009] NSWCATAD 176 Para 37

…Section 55(1)(b) of the NCAT Act has been summed up by Senior Member Maloney in Choi v University of Technology Sydney [2009] NSWCATAD 176 as follows and which I adopt:…

Legislation cited in this decision · 7

Government Information (Public Access) Act 2009 (NSW)
2 mentions (from Para 1)
Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 10)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention
Freedom of Information Act 1989 (repealed) (ACT)
1 mention
Government Information (Information Commissioner) Act 2009 (NSW)
1 mention
Local Government Act 1993 (TAS)
1 mention (from Para 7)
Ombudsman Act 1974 (NSW)
1 mention

Medium Neutral Citation:	Moran v Shellharbour City Council [2022] NSWCATAD 112
Hearing dates:	13 August 2021
Date of orders:	05 April 2022
Decision date:	05 April 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member
Decision:	The decision made by the Respondent on 16 March 2021 is affirmed.
Catchwords:	GOVERNMENT INFORMATION - Government Information (Public Access) Act 2009 – public interest against disclosure – frivolous – vexatious - misconceived - lacking in substance
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act (NSW) Government and Information (Public Access) Act 2009 (NSW) Government Information (Information Commissioner) Act 2009 (NSW) Local Government Act 1993 Local Government (General) Regulation 2005, the New South Wales Government Code of Practice for Procurement (2005)
Cases Cited:	Ansoul v City of Sydney [2017] NSWCATAD 65 Attorney-General v Wentworth (1998) 14 NSWLR 481 BDK v Department of Education and Communities [2015] NSWCATAP 129 Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD 114 Choi v University of Technology Sydney [2009] NSWCATAD 176 Clarke v Blacktown City Council [2013] NSWADT 36 Fernley v Health Care Complaints Commission [2020] NSWCATAD 30 Hurst v Wagga Wagga City Council [2011] NSWADT 307 JY v Commissioner for Police, New South Wales (2008) NSWADT 306 Lock the Gate Alliance v Department of Planning and Environment and Department of Premier and Cabinet [2019] NSWCATAD 6 McKean v Attorney-General and Justice [2015] NSWCATAD 176 McKinnon v Blacktown City Council [2012] NSWADT 44 Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71 Miriani v Transport for New South Wales [2021] NSWCATAD 16 O’Grady v Sutherland Shire Council (2020) NSWCATAD 50 Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277 Raven v The University of Sydney [2015] NSWCATAD 104 Shenhua Watermark Co Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119 Taylor v Destination NSW [2020] NSWCATAD 137 Walker v Pittwater Council [2016] NSWCATAD 78 Zonnevylle v NSW Department of Justice [2021] NSWCAT 175
Category:	Principal judgment
Parties:	Peter Moran (Applicant) Shellharbour City Council (Respondent) Information Commissioner (Intervenor)
Representation:	Counsel: Mr J Farrell – Respondent Solicitor: Applicant self-represented J Boyd – Vee Aviation (third party) R Wilkins – Information Commissioner
File Number(s):	2021/104058
Publication restriction:	Pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) – disclosure of the documents and information contained in the Confidential Bundles filed on 24 June 2021, 26 July 2021 and 25 August 2021 is prohibited.