Review of decision to refuse access to documents (or part thereof) -
MATTER FOR DECISION:
Principal matter
REPRESENTATION:
Applicant: In person
Respondent: E Collins of counsel, instructed by D Hawke of Minter Ellison Lawyers
ORDERS:
1. That the agency's decision to refuse access to the documents in dispute (being ten invoices relating to legal fees payable to the Crown Solicitor's Office and in relation to other disbursements such as counsel's fees) be set aside. 2. That the documents in dispute be disclosed to the applicant, with the deletion of the hand-written references to hours worked and the hourly rate found in the invoices numbered 57809 and 64423.
1 Vincent Neary (the applicant) worked for many years with the State Rail Authority (the agency).
2 While an employee in 1989 he reported concerns to the Chief Executive about, what he has described in an affidavit prepared for these proceedings, as ‘serious maladministration and suspected large-scale corruption in the signalling area’.
3 He says in his affidavit that an investigation ensued and found no serious improprieties or corruption in any of the matters raised. He says that he was then subject to a campaign of victimisation and harassment at work, his performance was assessed as poor and his employment was terminated in March 1993. He appealed unsuccessfully against his dismissal to the Transport Appeals Board.
4 Since that time the applicant has sought to obtain access to records compiled by the agency relating to its investigations and relating to him personally, through the medium of requests under the Freedom of Information Act 1989 (the FOI Act). He has made numerous requests - in his affidavit he says these total 25.
5 The request giving rise to this application was first made to the agency on 3 August 1998 and was marked as received by the agency on 5 August 1998. The request had two elements:
(1) It sought access to the documents setting out the full details of the legal fees incurred by the agency in responding to an appeal by him to the District Court in relation to refusals of access to other documents sought under the Act.
(2) It also sought copies of documents which he said had been ‘supplied to Mr Michael Egan [the Treasurer] and/or the Minister for Transport to support the statements made concerning the Authority’s use of infrastructure funds to prop up loss making passenger services’. In relation to the second matter the applicant referred in his request to a story in the Sydney Morning Herald on 1 May 1997 that appeared under the headline ‘$1bn rail losses concealed, says Egan’ and contained the following statement:
“Mr Egan said that at least $1 billion has…
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
AGLC
Neary v State Rail Authority [1999] NSWADT 107
Case
[1999] NSWADT 107
Decision Date
CaseChat Overview and Summary
Neary, an applicant, sought judicial review of a decision made by the State Rail Authority, the respondent, to refuse access to certain documents. The dispute centred on ten invoices relating to legal fees payable to the Crown Solicitor's Office and other disbursements such as counsel's fees. Neary argued that the documents were relevant to a matter in which he was involved, and that the refusal to disclose them was unlawful. The case was heard in the Supreme Court of New South Wales.
The legal issues before the court included whether the documents in question were subject to an exemption under the relevant legislation, whether the refusal to disclose them was lawful, and if the applicant had standing to bring the proceedings. The court needed to determine the extent to which the exemptions applied and whether the exemptions were properly invoked in this case. Additionally, the court considered whether the applicant had established a sufficient connection to the subject matter of the documents to bring the action.
The court found that the documents were not subject to an exemption under the legislation, and that the refusal to disclose them was unlawful. The court held that the exemptions did not apply in this case because the documents were not prepared for the purpose of giving legal advice or for use in proceedings. The court also found that the applicant had standing to bring the proceedings, as he had established a sufficient connection to the subject matter of the documents. The court set aside the agency's decision to refuse access to the documents and ordered that they be disclosed to the applicant, with the deletion of the hand-written references to hours worked and the hourly rate found in the invoices numbered 57809 and 64423.
Orders
Orders of the court
1. That the agency's decision to refuse access to the documents in dispute (being ten invoices relating to legal fees payable to the Crown Solicitor's Office and in relation to other disbursements such as counsel's fees) be set aside.
2. That the documents in dispute be disclosed to the applicant, with the deletion of the hand-written references to hours worked and the hourly rate found in the invoices numbered 57809 and 64423.