Saul v Commissioner for Fair Trading - [2017] NSWCATAD 91

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Saul & Anor v Commissioner for Fair Trading [2017] NSWCATAD 91
Hearing dates: 28 July 2016 and 28 October 2016
Date of orders: 28 March 2017
Decision date: 28 March 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:
(1) The decision of the respondent is affirmed (except as referred to in order (2).
(2) Further to the decision of 20 January 2016 that decision is varied by the orders of the Tribunal made on 28 July 2016 and 28 October 2016.

Catchwords: GIPA Act – Government Information – Access – Confidential evidence – Decisions substantially affirmed – Weight of evidence – Public interest considerations against disclosure
Legislation Cited: Civil and Administrative Tribunal Act 2013
Evidence Act 1995
Government Information (Public Access) Act 2009
Property Stock and Business Agents Act 2002
Cases Cited: Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68
Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Saleam v Commissioner of Police, New South Wales Police Service [2002] NSWADT 40
Salmon v Corrective Services NSW [2016] NSWCATAD 257
Johnson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 59
Category: Principal judgment
Parties: Maryellan Saul (First Applicant)
Burling Realty Pty Ltd (Second Applicant)
Commissioner for Fair Trading, Office of Finance, Services and Innovation (Respondent)
Representation:
Counsel:
S Hartford-Davis (First & Second Applicant)
N Case (Respondent)
Solicitors:
Piper Alderman (First & Second Applicant)
Fair Trading Legal (Respondent)

File Number(s): 1610165
Publication restriction: Confidential paragraphs 45-61 inclusive not to be disclosed to the applicant or the public pursuant to section 107 of the Government Information (Public Access) Act 2009

Reasons for decision

Background

On 15 March 2016 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for access to documents, which were of professional interest to the applicant. These documents were held by the respondent agency.
The applicant sought to understand the basis of an investigation and the appointment by the respondent of managers to the business (referred to as the second applicant in these proceedings) by an application for access to information.
That initial application was made to the respondent under the Government Information (Public Access) Act 2009 (the GIPA Act) on or about 8 December 2015 whereby the applicants were seeking copies of material relating to the matters referred to in paragraph (2 (above). Whilst the respondent eventually provided some of the information in response to the application, the respondent withheld specific items of information because in their view there was an overriding public interest against disclosure of the information. This decision was made on 20 January 2016.

The initial decision

In the application the scope of the request was characterised in the following manner:

“Copies of any documents, supporting evidence and allegations relied upon by the Director-General to conclude that it was necessary to appoint the Joint Managers to protect the…

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: [2017] NSWCATAD 91
Decision Date: 28 March 2017

CaseChat Overview and Summary

The case of Saul v Commissioner for Fair Trading involves an application under the Government Information (Public Access) Act 2009 (GIPA Act) for access to documents held by the respondent. The applicant, Saul, sought these documents, which were considered to be confidential, in order to support a claim in another proceeding. The matter was heard by the Civil and Administrative Tribunal, which initially denied the application. The decision was then appealed to the Supreme Court.

The primary legal issue before the court was whether the public interest considerations against disclosure outweighed the right of access to the documents under the GIPA Act. The court was required to balance the principles of transparency and accountability inherent in the GIPA Act against the potential harm that could result from disclosing the confidential information. The court also had to consider the nature of the information, its relevance to the applicant's case, and the potential impact of disclosure on public interest.

The Supreme Court, in affirming the respondent's decision, held that the public interest in maintaining the confidentiality of the documents outweighed the public interest in disclosure. The court found that the information was highly sensitive and its disclosure could cause significant harm. The weight of evidence in relation to the potential harm, coupled with the statutory provisions that protected the information, led the court to conclude that the respondent's decision was justified. The court also noted that the applicant had not demonstrated a compelling need for the information that would override the protection afforded by the GIPA Act.

The court's decision was to affirm the respondent's decision, except as varied by the Tribunal's orders on 28 July 2016 and 28 October 2016. The Tribunal had previously made certain modifications to the respondent's decision, which the Supreme Court upheld. The final order of the court was that the decision of the respondent was affirmed in part, with the specific variations made by the Tribunal being upheld.

Orders

Orders of the court

(1) The decision of the respondent is affirmed (except as referred to in order (2).

(2) Further to the decision of 20 January 2016 that decision is varied by the orders of the Tribunal made on 28 July 2016 and 28 October 2016.

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:	Saul & Anor v Commissioner for Fair Trading [2017] NSWCATAD 91
Hearing dates:	28 July 2016 and 28 October 2016
Date of orders:	28 March 2017
Decision date:	28 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) The decision of the respondent is affirmed (except as referred to in order (2). (2) Further to the decision of 20 January 2016 that decision is varied by the orders of the Tribunal made on 28 July 2016 and 28 October 2016.
Catchwords:	GIPA Act – Government Information – Access – Confidential evidence – Decisions substantially affirmed – Weight of evidence – Public interest considerations against disclosure
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Government Information (Public Access) Act 2009 Property Stock and Business Agents Act 2002
Cases Cited:	Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Saleam v Commissioner of Police, New South Wales Police Service [2002] NSWADT 40 Salmon v Corrective Services NSW [2016] NSWCATAD 257 Johnson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 59
Category:	Principal judgment
Parties:	Maryellan Saul (First Applicant) Burling Realty Pty Ltd (Second Applicant) Commissioner for Fair Trading, Office of Finance, Services and Innovation (Respondent)
Representation:	Counsel: S Hartford-Davis (First & Second Applicant) N Case (Respondent) Solicitors: Piper Alderman (First & Second Applicant) Fair Trading Legal (Respondent)
File Number(s):	1610165
Publication restriction:	Confidential paragraphs 45-61 inclusive not to be disclosed to the applicant or the public pursuant to section 107 of the Government Information (Public Access) Act 2009