Sharples v Tweed Shire Council - [2015] NSWCATAD 59

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Sharples v Tweed Shire Council [2015] NSWCATAD 59
Hearing dates: On the Papers
Decision date: 25 March 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer Senior Member
Decision:
(1) Under section 101 (4) of the GIPA Act I extend time to file the application until 5:00pm 23 April 2014
(2) I set aside the decision of the Respondent Agency and instead determine that within 30 days of the publication of these reasons the Respondent Agency release to the Applicant a copy of the report in the form referred to, and subject to deletions as indicated at paragraph 52 in these reasons.
Catchwords: Government Information (Public Access) - personal information- confidential information that facilitates the effective exercise of an agency's functions - breach of confidence - information provided to an agency in confidence – found action for breach of confidence – disclosure of information provided to agency in confidence
Legislation Cited: Freedom of Information Act 1989
Government Information (Public Access) Act 2009
Cases Cited: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.
Mannix v Department of Education and Communities [2014] NSWCATAD 35
McKinnon v Blacktown City Council [2012] NSWADT 44
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Flack v Commissioner of Police, NSW Police Force (2011) NSWADT 286 at [41]
XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2
Neary v State Rail Authority [1999] NSWADT 107
Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
Department of Education & Training v Mullet [2002] NSWADTAP 13,
Alexander v University of Sydney [2008] NSWADT 214 TW v TX [2005] NSWADT 262
Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 (4 March 2011)
Category: Principal judgment
Parties: Terry Sharples (Applicant)
Tweed Shire Council (Respondent)
Representation: Solicitors:
T Sharples (Applicant in person)
DLA Piper Australia (Respondent)

File Number(s): 1410200

Reasons for decision

Background

Mr Terry Sharples is a resident of Tweed Shire Council, a coastal council in the extreme north east corner of New South Wales.
Tweed Shire Council is a New South Wales Local Government entity which is a council within the meaning of the Local Government Act 1993. In addition Tweed Shire Council is an agency for the purposes of the Government Information (Public Access) Act 2009 (the GIPA Act), in that it is a ‘local authority’ for the purposes of section 4 (1) of the GIPA Act. Broadly, the term agency refers to the NSW public sector and other entities of government within New South Wales including Local Government.
The GIPA Act places various obligations on agencies within New South Wales in respect of their publication and release of the information that they create and hold. The GIPA Act provides rights for natural persons to where necessary, apply for unconditional copies of this government information.
On 18 October 2013 the Applicant made an application under the Government Information…

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: [2015] NSWCATAD 59
Decision Date: 25 March 2015

CaseChat Overview and Summary

Sharples v Tweed Shire Council was a case before the Supreme Court of New South Wales in which the plaintiff, Sharples, sought the release of a report that had been prepared for the Tweed Shire Council. The report was confidential, and Sharples argued that its disclosure was necessary for the effective exercise of an agency's functions. The court was required to determine whether the information was exempt from disclosure under the Government Information (Public Access) Act 2009 (NSW) and whether the disclosure of the report would constitute a breach of confidence.

The primary legal issue was whether the confidential information contained in the report could be disclosed to the public without breaching the statutory confidentiality provisions and the common law principle of breach of confidence. The court considered the purpose for which the information was obtained and whether the disclosure would facilitate the effective exercise of the agency's functions. The court also examined the nature of the information and the circumstances in which it was obtained to determine whether it was subject to a duty of confidence.

The court found that the information in the report was not exempt from disclosure under the GIPA Act and that the disclosure of the report would not constitute a breach of confidence. The court determined that the release of the report was necessary for the effective exercise of the agency's functions and that the public interest in disclosure outweighed any potential harm caused by the disclosure. The court ordered that the report be released to the plaintiff within 30 days of the publication of the reasons for the judgment. The court also extended the time for filing the application until 5:00pm 23 April 2014.

Orders

Orders of the court

(1) Under section 101 (4) of the GIPA Act I extend time to file the application until 5:00pm 23 April 2014

(2) I set aside the decision of the Respondent Agency and instead determine that within 30 days of the publication of these reasons the Respondent Agency release to the Applicant a copy of the report in the form referred to, and subject to deletions as indicated at paragraph 52 in these reasons.

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:	Sharples v Tweed Shire Council [2015] NSWCATAD 59
Hearing dates:	On the Papers
Decision date:	25 March 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member
Decision:	(1) Under section 101 (4) of the GIPA Act I extend time to file the application until 5:00pm 23 April 2014 (2) I set aside the decision of the Respondent Agency and instead determine that within 30 days of the publication of these reasons the Respondent Agency release to the Applicant a copy of the report in the form referred to, and subject to deletions as indicated at paragraph 52 in these reasons.
Catchwords:	Government Information (Public Access) - personal information- confidential information that facilitates the effective exercise of an agency's functions - breach of confidence - information provided to an agency in confidence – found action for breach of confidence – disclosure of information provided to agency in confidence
Legislation Cited:	Freedom of Information Act 1989 Government Information (Public Access) Act 2009
Cases Cited:	Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409. Mannix v Department of Education and Communities [2014] NSWCATAD 35 McKinnon v Blacktown City Council [2012] NSWADT 44 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Flack v Commissioner of Police, NSW Police Force (2011) NSWADT 286 at [41] XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2 Neary v State Rail Authority [1999] NSWADT 107 Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. Department of Education & Training v Mullet [2002] NSWADTAP 13, Alexander v University of Sydney [2008] NSWADT 214 TW v TX [2005] NSWADT 262 Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 (4 March 2011)
Category:	Principal judgment
Parties:	Terry Sharples (Applicant) Tweed Shire Council (Respondent)
Representation:	Solicitors: T Sharples (Applicant in person) DLA Piper Australia (Respondent)
File Number(s):	1410200