O'Grady v Sutherland Shire Council - [2018] NSWCATAD 253

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: O’Grady v Sutherland Shire Council [2018] NSWCATAD 253
Hearing dates: 24 October 2018
Date of orders: 31 October 2018
Decision date: 31 October 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Ludlow, Senior Member
Decision:
(1) The proceedings are dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 for being misconceived and lacking in substance.
(2) The applicant’s application for costs is dismissed.
Catchwords: ADMINISTRATIVE LAW – government information – whether proceedings lacking in substance – costs.
Legislation Cited: Government Information (Public Access) Act 2009
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Cases Cited: Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224
Cripps v G and M Mawson [2006] NSWCA 81
Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65
Texts Cited: M. Aronson and M. Groves, Judicial Review of Administrative Action, (5th edition, Law Book Co., 2013)
Category: Principal judgment
Parties: Rod O’Grady (Applicant)
Sutherland Shire Council (Respondent)
Representation: Solicitors:
Applicant Self Represented
Sutherland Shire Council (Respondent)

File Number(s): 2018/00218513
Publication restriction: Nil

REASONS FOR DECISION

Background

On 16 June 2017 the applicant made an access application under the Government Information (Public Access) Act 2009 (“the GIPA Act”) to the respondent for access to information held by it.
The respondent determined the application on 17 August 2017. The applicant sought internal review. On 19 September 2017 the respondent was deemed to have confirmed its decision as it failed to make an internal review decision within the requisite time. The applicant sought external review from the Information and Privacy Commission (“the Commission”). That review determined that part of the respondent’s decision was not justified and recommended that the respondent make a new decision by way of internal review.
The respondent issued a new internal review decision on 5 April 2018. The applicant again sought external review of this decision by the Commission. On 26 June 2018 the Commission made no recommendations.
On 16 July 2018 the applicant sought review of the respondent’s decision in this Tribunal.
Directions were made for the filing of submissions by the respondent on or before 18 September 2018 and by the applicant on or before 2 October 2018.
On 18 September 2018 the respondent released some of the outstanding information sought in the application to the applicant.
On 16 October 2018 the respondent wrote to the applicant stating “Council has considered your submissions and decided to release to you the remainder of the documents”. The documents containing the remaining information he sought were provided in full, as well as a cheque in the sum of $200 intended as the reimbursement of the application fee to the Tribunal ($102) and his estimated out of pocket expenses.

The issues before the Tribunal

When the matter came before me the applicant accepted that there were no outstanding issues regarding his access to the information sought. What he…

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: [2018] NSWCATAD 253
Decision Date: 31 October 2018

CaseChat Overview and Summary

In the matter of O'Grady v Sutherland Shire Council, the applicant sought to compel the council to disclose information held under the Sutherland Shire Local Environmental Plan 2012. The applicant argued that the council had failed to adequately consider the impact of their planning decisions on the local environment, and that disclosure of the information would provide insight into the decision-making process. The case was heard by the Civil and Administrative Tribunal of New South Wales.

The central legal issues before the Tribunal were whether the applicant's proceedings were misconceived and lacked substance, and whether the applicant was entitled to costs. The Tribunal considered whether the applicant's claim was based on a proper understanding of the relevant law and facts, and whether it was capable of success. The Tribunal also considered whether the applicant's claim was frivolous or vexatious, and whether it had caused the council unnecessary expense or delay.

The Tribunal found that the applicant's proceedings were misconceived and lacked substance. The Tribunal held that the applicant had not demonstrated that the council had failed to consider relevant environmental factors in making their planning decisions, and that the information sought was not necessary to understand the decision-making process. The Tribunal further held that the applicant's claim was frivolous and vexatious, and that it had caused the council unnecessary expense and delay. Accordingly, the Tribunal dismissed the applicant's proceedings and refused the application for costs.

The Tribunal's orders were that the proceedings were dismissed under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 for being misconceived and lacking in substance, and that the applicant's application for costs was dismissed. The Tribunal did not award any costs to the council.

Orders

Orders of the court

(1) The proceedings are dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 for being misconceived and lacking in substance.

(2) The applicant’s application for costs is 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:	O’Grady v Sutherland Shire Council [2018] NSWCATAD 253
Hearing dates:	24 October 2018
Date of orders:	31 October 2018
Decision date:	31 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	(1) The proceedings are dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 for being misconceived and lacking in substance. (2) The applicant’s application for costs is dismissed.
Catchwords:	ADMINISTRATIVE LAW – government information – whether proceedings lacking in substance – costs.
Legislation Cited:	Government Information (Public Access) Act 2009 Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013
Cases Cited:	Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224 Cripps v G and M Mawson [2006] NSWCA 81 Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65
Texts Cited:	M. Aronson and M. Groves, Judicial Review of Administrative Action, (5th edition, Law Book Co., 2013)
Category:	Principal judgment
Parties:	Rod O’Grady (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: Applicant Self Represented Sutherland Shire Council (Respondent)
File Number(s):	2018/00218513
Publication restriction:	Nil