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O'Hara v North Sydney Council

O'Hara v North Sydney Council

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CITATION: O'Hara v North Sydney Council [2005] NSWADT 100

DIVISION: General Division

PARTIES: APPLICANT
Louise O'Hara
RESPONDENT
North Sydney Council

FILE NUMBER: 033250

HEARING DATES: 21 October 2004, 8 December 2004, 28 January 2005, 16 March 2005

SUBMISSIONS CLOSED: 03/16/2005

DATE OF DECISION:
05/10/2005

BEFORE: Higgins S - Judicial Member

APPLICATION: access to documents - adequacy of search - access to documents - legal professional privilege - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - legal professional privilege

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED: Abigroup Ltd v Akins (1997) 42 NSWLR 623
Attorney General (NT) v Maurice (1986) 161 CLR 475
Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCA 1181
Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Australian Rugby Union Ltd v Hospitality Group Pty Ltd and Ors [1999] FCA 1061
Baker v Campbell (1983) 153 CLR 52
Beesley v Commissioner of Police [2000] NSW ADT 52Cianfrano v Premier's Department [2004] NSWADT 225
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125
Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner (2002) 213 CLR 543
DQ v Commissioner of Police, New South Wales Police Service [2002] NSW ADT 215
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Fagan v State of New South Wales [2004] NSWCA 182
Goldberg v Ng (1995) 185 CLR 83
Mann v Carnell (1999) 201 CLR 1
Murre (No. 2) v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 175
O'Reilly v Commissioner of State Bank of Victoria (1982) 153 CLR 1
Shepherd and Department of Housing, Local Government and Planning [1994] 1 QAR 464
State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224
Trade Practices Commission v Sterling (1979) 36 FLR 244
Waterford v Commonwealth (1987) 163 CLR 54
Woollahra Municipal Council v Westpac Banking Corp (1994) 33 NSWLR 529

REPRESENTATION: APPLICANT
In person
RESPONDENT
G Furness, barrister

ORDERS: Tribunal orders; a) the decision of the Council to refuse the applicant access to the documents referred to in paragraph 52 of this decision is affirmed; b) the decision of the Council to refuse the applicant access to the documents referred to in paragraph 53 of this decision is set aside and in substitution thereof a decision that the applicant be granted access to these documents; c) in respect of those documents referred to in (a) above which are exempt in part, Council to provide the applicant with a copy of those documents with the exempt material deleted within 28 days of this decision and; d) Council to provide the applicant with a copy of the documents referred to in (b) within 28 days of this decision.

REASONS FOR DECISION

Introduction

1 This is an application by Ms O’Hara (“the applicant”)…

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: [2005] NSWADT 100
Decision Date: 05/10/2005

CaseChat Overview and Summary

In the matter of O'Hara v North Sydney Council, the applicant sought access to certain documents held by the respondent under the NSW Government Information (Public Access) Act 2009. The applicant's request for documents was partially granted by the respondent, but the applicant sought further access to additional documents. The case was heard by the NSW Civil and Administrative Tribunal.

The legal issues before the tribunal centred on the interpretation and application of the NSW Government Information (Public Access) Act 2009. The primary issue was whether the documents sought by the applicant were exempt from disclosure under the Act, and if not, whether the respondent's refusal to disclose them was justified. The tribunal also needed to determine whether the respondent had complied with its obligations under the Act in providing access to the documents that were not exempt.

The tribunal found that the respondent had failed to properly consider the public interest in disclosure of the documents sought by the applicant. It held that the documents referred to in paragraph 53 of the decision were not exempt from disclosure under the Act, and that the respondent's refusal to disclose them was not justified. The tribunal also found that the respondent had not complied with its obligations under the Act in providing access to the documents that were not exempt. The tribunal ordered the respondent to provide the applicant with access to the documents referred to in paragraph 53 of the decision, and to provide the applicant with a copy of the documents referred to in (a) above with the exempt material deleted within 28 days of the decision. The tribunal affirmed the respondent's decision to refuse access to the documents referred to in paragraph 52 of the decision, finding that they were properly exempt from disclosure under the Act.

Orders

Orders of the court

Tribunal orders; a) the decision of the Council to refuse the applicant access to the documents referred to in paragraph 52 of this decision is affirmed; b) the decision of the Council to refuse the applicant access to the documents referred to in paragraph 53 of this decision is set aside and in substitution thereof a decision that the applicant be granted access to these documents; c) in respect of those documents referred to in (a) above which are exempt in part, Council to provide the applicant with a copy of those documents with the exempt material deleted within 28 days of this decision and; d) Council to provide the applicant with a copy of the documents referred to in (b) within 28 days 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.

CITATION:	O'Hara v North Sydney Council [2005] NSWADT 100
DIVISION:	General Division
PARTIES:	APPLICANT Louise O'Hara RESPONDENT North Sydney Council
FILE NUMBER:	033250
HEARING DATES:	21 October 2004, 8 December 2004, 28 January 2005, 16 March 2005
SUBMISSIONS CLOSED:	03/16/2005
DATE OF DECISION:	05/10/2005
BEFORE:	Higgins S - Judicial Member
APPLICATION:	access to documents - adequacy of search - access to documents - legal professional privilege - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Abigroup Ltd v Akins (1997) 42 NSWLR 623 Attorney General (NT) v Maurice (1986) 161 CLR 475 Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCA 1181 Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Australian Rugby Union Ltd v Hospitality Group Pty Ltd and Ors [1999] FCA 1061 Baker v Campbell (1983) 153 CLR 52 Beesley v Commissioner of Police [2000] NSW ADT 52Cianfrano v Premier's Department [2004] NSWADT 225 Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner (2002) 213 CLR 543 DQ v Commissioner of Police, New South Wales Police Service [2002] NSW ADT 215 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Fagan v State of New South Wales [2004] NSWCA 182 Goldberg v Ng (1995) 185 CLR 83 Mann v Carnell (1999) 201 CLR 1 Murre (No. 2) v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 175 O'Reilly v Commissioner of State Bank of Victoria (1982) 153 CLR 1 Shepherd and Department of Housing, Local Government and Planning [1994] 1 QAR 464 State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224 Trade Practices Commission v Sterling (1979) 36 FLR 244 Waterford v Commonwealth (1987) 163 CLR 54 Woollahra Municipal Council v Westpac Banking Corp (1994) 33 NSWLR 529
REPRESENTATION:	APPLICANT In person RESPONDENT G Furness, barrister
ORDERS:	Tribunal orders; a) the decision of the Council to refuse the applicant access to the documents referred to in paragraph 52 of this decision is affirmed; b) the decision of the Council to refuse the applicant access to the documents referred to in paragraph 53 of this decision is set aside and in substitution thereof a decision that the applicant be granted access to these documents; c) in respect of those documents referred to in (a) above which are exempt in part, Council to provide the applicant with a copy of those documents with the exempt material deleted within 28 days of this decision and; d) Council to provide the applicant with a copy of the documents referred to in (b) within 28 days of this decision.