Park v Transport for NSW - [2018] NSWCATAD 82

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Park v Transport for NSW [2018] NSWCATAD 82
Hearing dates: 1 December 2017
Date of orders: 12 April 2018
Decision date: 12 April 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer Senior Member
Decision:
Proceedings 2017/00069686
(1) The decision of the respondent is set aside in respect of documents: 1.2, 2.3, 2.7, 2.8, 2.9, 2.11a, 2.11b, 2.11c, 2.12, and 2.14.

(2) The decision of the respondent is otherwise affirmed.

(3) Pursuant to s 106 (2) of the GIPA Act the respondent is to produce the information for which the remaining Sch 1 Cl (2) claim is made, including any other documents identified since the hearing, and also to produce any document that the information was assessed against in making a finding that the information was Cabinet information. Such material is to be filed and received under the provisions of s 107 (2) of the GIPA Act within 21 days of publication of these reasons.

(4) The matter is listed for directions before the Tribunal constituted by myself at 9:30am on 1 May 2018.

2017/00129838
(1) The decision of the respondent is set aside in respect of documents: 2.15a, 2.16a, 2.20 and 2.20a.

(2) The decision of the respondent is otherwise affirmed.

(3) Pursuant to s 106 (2) of the GIPA Act the respondent is to produce the information for which the remaining Sch 1 Cl (2) claim is made, including any other documents identified since the conclusion of the hearing, and also to produce any document that the information was assessed against in making a finding that the information was Cabinet information. Such material is to be filed and received under the provisions of s 107 (2) of the GIPA Act within 21 days of publication of these reasons.
(4) The matter is listed for directions before the Tribunal constituted by myself at 9:30am on 1 May 2018.
Catchwords: ADMINSTRATIVE LAW –access to government information - cabinet material –whether reasonable grounds for withholding information established
Legislation Cited: Civil and Administrative Tribunal Act 2013
Freedom of Information Act 1989
Government Information (Public Access) Act 2009
Cases Cited: D’Adam v New South Wales [2014] NSWCATAD 68
Kline v Official Secretary to the Governor General (2013) 249 CLR 645
McKay v Transport for NSW [2017] NSWCATAD 212
McKinnon v Secretary Department of Treasury (2006) 228 CLR 423
Mookhey v Infrastructure NSW [2017] NSWCATAD 345
Prior v Mole [2017] HCA 10
Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353
Searle v Transport for NSW [2017] NSWCATAD 256
Category: Principal judgment
Parties: Ryan Park MP (Applicant)
Transport for NSW (Respondent)
Representation:
Counsel:
P Bonardo (Applicant)
D Birch (Respondent)
Solicitors:
Aus Ship Lawyers (Applicant)
Crown Solicitor's Office (Respondent)

File Number(s): 2017/00069686 2017/00129838

Reasons for decision

Background

These reasons concern two sets of proceedings involving the same parties and filed by the applicant approximately two months apart. They concern the initial decisions by the respondent agency regarding access…

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 82
Decision Date: 12 April 2018

CaseChat Overview and Summary

In the case of Park v Transport for New South Wales, the dispute involved the release of certain documents under the Government Information (Public Access) Act 2009 (GIPA Act). The applicant sought access to specific documents held by the respondent, Transport for New South Wales, which had been withheld on the basis that they contained Cabinet information. The case was heard by the Information and Privacy Commission of New South Wales.

The primary legal issue before the court was whether the respondent had established reasonable grounds to withhold the information under section 33 of the GIPA Act. Specifically, the court had to determine whether the documents in question were indeed Cabinet documents and whether the respondent could demonstrate that releasing them would be contrary to the public interest.

In its decision, the Information and Privacy Commission found that the respondent had not provided sufficient evidence to establish reasonable grounds for withholding the information. The court set aside the respondent's decision to withhold certain documents, including documents 1.2, 2.3, 2.7, 2.8, 2.9, 2.11a, 2.11b, 2.11c, 2.12, 2.14, 2.15a, 2.16a, 2.20, and 2.20a. The Commission directed the respondent to produce these documents within 21 days of the publication of the reasons. The decision affirmed the withholding of information for other documents not specified in the order.

The final orders of the court required the respondent to produce the remaining documents claimed under the GIPA Act, including any other documents identified since the hearing, and to provide any documents that the withheld information was assessed against to determine if it was Cabinet information. The matter was listed for directions before the Tribunal on 1 May 2018.

Orders

Orders of the court

Proceedings 2017/00069686

(1) The decision of the respondent is set aside in respect of documents: 1.2, 2.3, 2.7, 2.8, 2.9, 2.11a, 2.11b, 2.11c, 2.12, and 2.14.

(2) The decision of the respondent is otherwise affirmed.

(3) Pursuant to s 106 (2) of the GIPA Act the respondent is to produce the information for which the remaining Sch 1 Cl (2) claim is made, including any other documents identified since the hearing, and also to produce any document that the information was assessed against in making a finding that the information was Cabinet information. Such material is to be filed and received under the provisions of s 107 (2) of the GIPA Act within 21 days of publication of these reasons.

(4) The matter is listed for directions before the Tribunal constituted by myself at 9:30am on 1 May 2018.

2017/00129838

(1) The decision of the respondent is set aside in respect of documents: 2.15a, 2.16a, 2.20 and 2.20a.

(2) The decision of the respondent is otherwise affirmed.

(3) Pursuant to s 106 (2) of the GIPA Act the respondent is to produce the information for which the remaining Sch 1 Cl (2) claim is made, including any other documents identified since the conclusion of the hearing, and also to produce any document that the information was assessed against in making a finding that the information was Cabinet information. Such material is to be filed and received under the provisions of s 107 (2) of the GIPA Act within 21 days of publication of these reasons.

(4) The matter is listed for directions before the Tribunal constituted by myself at 9:30am on 1 May 2018.

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:	Park v Transport for NSW [2018] NSWCATAD 82
Hearing dates:	1 December 2017
Date of orders:	12 April 2018
Decision date:	12 April 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member
Decision:	Proceedings 2017/00069686 (1) The decision of the respondent is set aside in respect of documents: 1.2, 2.3, 2.7, 2.8, 2.9, 2.11a, 2.11b, 2.11c, 2.12, and 2.14. (2) The decision of the respondent is otherwise affirmed. (3) Pursuant to s 106 (2) of the GIPA Act the respondent is to produce the information for which the remaining Sch 1 Cl (2) claim is made, including any other documents identified since the hearing, and also to produce any document that the information was assessed against in making a finding that the information was Cabinet information. Such material is to be filed and received under the provisions of s 107 (2) of the GIPA Act within 21 days of publication of these reasons. (4) The matter is listed for directions before the Tribunal constituted by myself at 9:30am on 1 May 2018. 2017/00129838 (1) The decision of the respondent is set aside in respect of documents: 2.15a, 2.16a, 2.20 and 2.20a. (2) The decision of the respondent is otherwise affirmed. (3) Pursuant to s 106 (2) of the GIPA Act the respondent is to produce the information for which the remaining Sch 1 Cl (2) claim is made, including any other documents identified since the conclusion of the hearing, and also to produce any document that the information was assessed against in making a finding that the information was Cabinet information. Such material is to be filed and received under the provisions of s 107 (2) of the GIPA Act within 21 days of publication of these reasons. (4) The matter is listed for directions before the Tribunal constituted by myself at 9:30am on 1 May 2018.
Catchwords:	ADMINSTRATIVE LAW –access to government information - cabinet material –whether reasonable grounds for withholding information established
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Freedom of Information Act 1989 Government Information (Public Access) Act 2009
Cases Cited:	D’Adam v New South Wales [2014] NSWCATAD 68 Kline v Official Secretary to the Governor General (2013) 249 CLR 645 McKay v Transport for NSW [2017] NSWCATAD 212 McKinnon v Secretary Department of Treasury (2006) 228 CLR 423 Mookhey v Infrastructure NSW [2017] NSWCATAD 345 Prior v Mole [2017] HCA 10 Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353 Searle v Transport for NSW [2017] NSWCATAD 256
Category:	Principal judgment
Parties:	Ryan Park MP (Applicant) Transport for NSW (Respondent)
Representation:	Counsel: P Bonardo (Applicant) D Birch (Respondent) Solicitors: Aus Ship Lawyers (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	2017/00069686 2017/00129838