Port Stephens Council v Webb - [2017] NSWCATAD 341

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Port Stephens Council v Webb [2017] NSWCATAD 341
Hearing dates: 19 July 2017
Date of orders: 22 November 2017
Decision date: 22 November 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:
(1) Application is dismissed.

Catchwords: ADMINISTRATIVE LAW – Government information – Application for restraint order – Where agency determined it did not hold information sought by applicant in four applications made in previous two years – Where three of those applications the subject of Tribunal review - Whether access applications lacked merit – Whether discretionary factors favoured making of restraint order – Whether proportion of Council’s resources taken up by access applicant was a relevant discretionary factor – Whether alleged conduct of applicant in writing voluminous correspondence to Council and making defamatory statements was a relevant factor
Legislation Cited: Government Information (Public Access) Act 2009 (NSW)
Cases Cited: Palerang Council, Queanbeyan City Council & Goulburn Mulwaree Council v Powell [2015] NSWCATAD 44
Pittwater Council v Walker [2015] NSWCATAD 34
Texts Cited: New South Wales Ombudsman, ‘Opening Up Government – Review of the Freedom of Information Act 1989,’ a Special Report to Parliament under s 31 of the Ombudsman Act 1974, 5 February 2009
Category: Principal judgment
Parties: Port Stephens Council (Applicant)
Telina Webb (Respondent)
Representation: Solicitors:
Local Government Legal (Applicant)
In Person (Respondent)

File Number(s): 2017/00153702

REASONS FOR DECISION

This was an application under s 110 of the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”) for an order restraining Ms Webb from making an access application without first obtaining the Tribunal’s approval.
I have found that the criteria for the making of the order are satisfied. However, I have declined to make the order, in the exercise of my discretion.

Application for restraint order

Port Stephens Council (“the Council”) applied for a restraint order under s 110 of the GIPA Act. It claims that four access applications made to it by Ms Webb in the past two years lack merit.
Section 110 of the GIPA Act provides:

“110 Orders to restrain making of unmeritorious access applications
(1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT if NCAT is satisfied that the person has made at least 3 access applications (to one or more agencies) in the previous 2 years that lack merit. Such an order is a restraint order.
(2) An access application is to be regarded as lacking merit if:
(a) the agency decided the application by refusing to deal with the application in its entirety, or
(b) the agency decided the application by deciding that none of the information applied for is held by the agency, or
(c) the access applicant’s entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable).
(3) A restraint order may be made to apply to…

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.

Continue reading Port Stephens Council v Webb

Details

AGLC: Port Stephens Council v Webb [2017] NSWCATAD 341
Case: [2017] NSWCATAD 341
Decision Date: 22 November 2017

CaseChat Overview and Summary

In the case of Port Stephens Council v Webb, the applicant sought a restraint order against the Council, arguing that it had failed to properly respond to multiple information access requests. The Council had previously determined that it did not hold the information sought by the applicant in four separate applications made over the preceding two years. Three of these applications were subject to review by the Information and Privacy Commission of New South Wales, which determined that they lacked merit. The Administrative Appeals Tribunal was tasked with determining whether the discretionary factors supported the making of a restraint order, including whether the proportion of the Council's resources consumed by the applicant's requests was relevant, and whether the applicant's conduct, including the volume of correspondence sent to the Council and alleged defamatory statements, was pertinent.

The court examined whether the discretionary factors identified by the applicant warranted the making of a restraint order. It noted that the volume of information access applications and the resources required to process them could be a relevant factor, but found that the Council's evidence did not establish that the applicant's requests were disproportionate or unreasonable. Additionally, the court considered the applicant's conduct, including the volume of correspondence and defamatory statements, but concluded that these factors did not necessarily support the making of a restraint order. The Tribunal held that the applicant's conduct did not demonstrate a pattern of abuse of the access process, and that the Council's resources were not excessively burdened by the applicant's requests.

The Tribunal dismissed the application for a restraint order, finding that the discretionary factors did not favour its making. The court emphasised that while the applicant's conduct and the volume of requests were relevant considerations, they did not establish that the applicant was abusing the access process or unduly burdening the Council's resources. The Tribunal's decision underscores the importance of balancing the right to access information with the need to protect public resources and maintain efficient administrative processes.

Orders

Orders of the court

(1) Application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Port Stephens Council v Webb [2017] NSWCATAD 341
Hearing dates:	19 July 2017
Date of orders:	22 November 2017
Decision date:	22 November 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	(1) Application is dismissed.
Catchwords:	ADMINISTRATIVE LAW – Government information – Application for restraint order – Where agency determined it did not hold information sought by applicant in four applications made in previous two years – Where three of those applications the subject of Tribunal review - Whether access applications lacked merit – Whether discretionary factors favoured making of restraint order – Whether proportion of Council’s resources taken up by access applicant was a relevant discretionary factor – Whether alleged conduct of applicant in writing voluminous correspondence to Council and making defamatory statements was a relevant factor
Legislation Cited:	Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	Palerang Council, Queanbeyan City Council & Goulburn Mulwaree Council v Powell [2015] NSWCATAD 44 Pittwater Council v Walker [2015] NSWCATAD 34
Texts Cited:	New South Wales Ombudsman, ‘Opening Up Government – Review of the Freedom of Information Act 1989,’ a Special Report to Parliament under s 31 of the Ombudsman Act 1974, 5 February 2009
Category:	Principal judgment
Parties:	Port Stephens Council (Applicant) Telina Webb (Respondent)
Representation:	Solicitors: Local Government Legal (Applicant) In Person (Respondent)
File Number(s):	2017/00153702