Park v Transport for NSW (No 2) - [2018] NSWCATAD 134

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Park v Transport for NSW (No 2) [2018] NSWCATAD 134
Hearing dates: On the papers
Date of orders: 28 June 2018
Decision date: 28 June 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:
(1) In proceedings 2017/00069686 the decision of the respondent is affirmed in respect of documents: 1.2, 2.3, 2., 2.8, 2.9, 2.11a, 2.11b, 2.11c, 2.12 and 2.14.

(2) In proceedings 2017/00129838 the decision of the respondent is affirmed in respect of documents: 2.15a, 2.16a and 2.20a.
(3) In proceedings 2017/00129838 the decision of the respondent is set aside in respect of document 2.20.
Catchwords: GIPA Act – Government information – access – confidential information – cabinet material – position Minister was taking – whether conclusive presumption of overriding public interest against disclosure - Cabinet information – special procedure for dealing with Cabinet information
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Cases Cited: Bennison v NSW Department of Premier and Cabinet [2016] NSWCATAD 101
D'Adam v New South Wales Treasury [2014] NSWCATAD 68
D'Adam v New South Wales Treasury [2015] NSWCATAP 61
Nicholls v Transport for NSW (No 2) [2018] NSWCATAD 89
Park v Transport for NSW [2018] NSWCATAD 82
Category: Principal judgment
Parties: Ryan Park MP (Applicant)
Transport for NSW (Respondent)
Representation:
Counsel:
P Boncardo (Applicant)
D Birch (Respondent)
Solicitors:
Aus Ship Lawyers (Applicant)
NSW Crown Solicitors Office (Respondent)

File Number(s): 2017/00069686 & 2017/00129838
Publication restriction: Nil

REASONS FOR DECISION

These reasons for decision need to be read in conjunction with the earlier reasons published on 12 April 2018 under citation: Park v Transport for NSW [2018] NSWCATAD 82, which I will refer to in these reasons as ‘Park No 1’. The ultimate position of the Tribunal on the application can only be determined considering the reasons jointly. The proceedings relate to the applicant’s request for specific information on the Sydney Light Rail project, under the Government Information (Public Access) Act 2009 (NSW) (the ‘GIPA Act’). because nearly all of the remaining information in dispute on my assessment constitutes Cabinet information, the respondent’s decision will be substantially affirmed.

Background

In the administrative decision under review the respondent refused to release the requested information on the basis that it was considered to be Cabinet information as referred to in cl 2 of sch 1 of the GIPA Act. Such material (as properly considered) has a conclusive presumption of an overriding public interest against disclosure.
In Park No 1, I determined that the respondents claim that there were reasonable grounds that the material was Cabinet information was (in respect of some of the information) not supported by the evidence. As a result the respondent has been required to produce the material to the Tribunal so that I can examine it in order to determine whether it is properly characterised as Cabinet material.
At a Directions hearing on 1 May 2018 the parties…

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 134
Decision Date: 28 June 2018

CaseChat Overview and Summary

In the case of Park v Transport for NSW (No 2), the applicant sought access to certain documents under the Government Information (Public Access) Act 2009 (NSW). The applicant, Park, contended that the Transport for NSW had improperly refused to disclose documents relating to its decision-making processes and policies. The matter was heard by the Land and Environment Court of New South Wales, which had to determine whether the documents were exempt from disclosure due to confidentiality or other reasons.

The court was required to decide whether certain documents were exempt from disclosure under the GIPA Act, specifically whether there was a conclusive presumption of an overriding public interest against disclosure, and whether the documents constituted cabinet material requiring a special procedure. The central issue was whether the documents contained information that was exempt from disclosure due to its confidential nature or because it was cabinet material.

The court held that the respondent's decision to withhold certain documents was justified. The court found that the documents contained information that was exempt from disclosure due to the conclusive presumption of an overriding public interest against disclosure. Furthermore, the court confirmed that certain documents constituted cabinet material, necessitating a special procedure for their disclosure. Consequently, the court affirmed the respondent's decision to withhold the majority of the contested documents while setting aside the decision regarding one specific document.

The court ordered that the decisions of the Transport for NSW to withhold certain documents were affirmed, except for one document which was to be disclosed. The final orders confirmed the withholding of specific documents while mandating the disclosure of one document that did not meet the criteria for exemption.

Orders

Orders of the court

(1) In proceedings 2017/00069686 the decision of the respondent is affirmed in respect of documents: 1.2, 2.3, 2., 2.8, 2.9, 2.11a, 2.11b, 2.11c, 2.12 and 2.14.

(2) In proceedings 2017/00129838 the decision of the respondent is affirmed in respect of documents: 2.15a, 2.16a and 2.20a.

(3) In proceedings 2017/00129838 the decision of the respondent is set aside in respect of document 2.20.

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 (No 2) [2018] NSWCATAD 134
Hearing dates:	On the papers
Date of orders:	28 June 2018
Decision date:	28 June 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) In proceedings 2017/00069686 the decision of the respondent is affirmed in respect of documents: 1.2, 2.3, 2., 2.8, 2.9, 2.11a, 2.11b, 2.11c, 2.12 and 2.14. (2) In proceedings 2017/00129838 the decision of the respondent is affirmed in respect of documents: 2.15a, 2.16a and 2.20a. (3) In proceedings 2017/00129838 the decision of the respondent is set aside in respect of document 2.20.
Catchwords:	GIPA Act – Government information – access – confidential information – cabinet material – position Minister was taking – whether conclusive presumption of overriding public interest against disclosure - Cabinet information – special procedure for dealing with Cabinet information
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	Bennison v NSW Department of Premier and Cabinet [2016] NSWCATAD 101 D'Adam v New South Wales Treasury [2014] NSWCATAD 68 D'Adam v New South Wales Treasury [2015] NSWCATAP 61 Nicholls v Transport for NSW (No 2) [2018] NSWCATAD 89 Park v Transport for NSW [2018] NSWCATAD 82
Category:	Principal judgment
Parties:	Ryan Park MP (Applicant) Transport for NSW (Respondent)
Representation:	Counsel: P Boncardo (Applicant) D Birch (Respondent) Solicitors: Aus Ship Lawyers (Applicant) NSW Crown Solicitors Office (Respondent)
File Number(s):	2017/00069686 & 2017/00129838
Publication restriction:	Nil