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Shenhua Watermark Coal Pty Limited v Department of Planning and Environment

Shenhua Watermark Coal Pty Limited v Department of Planning and Environment

Case [2019] NSWCATAD 119 17 June 2019

Administrative Review

Government Information

Public Interest Considerations Against Disclosure

Administrative Law

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Shenhua Watermark Coal Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119
Hearing dates: On the papers
Date of orders: 17 June 2019
Decision date: 17 June 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: K Ransome, Senior Member
Decision:
1. By consent, the decision under review is varied to the extent that personal information is redacted from documents 2, 3, 4, 9, 12, 13, 20, 21 and 22 in accordance with the consent agreement filed with the Tribunal on 28 August 2018.
2. By consent, the decision under review is varied to the extent that personal information as agreed between the parties is redacted from documents 1 and 14.
3. The decision under review is otherwise affirmed.

Catchwords: ADMINISTRATIVE LAW – administrative review - Government Information – third party consultation - public interest considerations against disclosure – whether information provided in confidence – whether disclosure could reasonably be expected to diminish competitive commercial value of information – whether disclosure could prejudice business and commercial interests – onus on third party applicant to establish an overriding public interest against disclosure – onus not discharged
Legislation Cited: Government Information (Public Access) Act 2009
Mining Act 1992
Mining Regulation 2010
Mining Regulation 2016
Cases Cited: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252
Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80
Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Leech v Sydney Water Corporation [2010] NSWADT 298
Macquarie University v Howell (No 2) [2009] NSWADTAP 19
McKinnon v Blacktown City Council [2012] NSWADT 44
Meriton Property Services Pty Ltd & Ors v UrbanGrowth NSW [2017] NSWCATAD 71
Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195
Raven v University of Sydney [2015] NSWCATAD 104
Watts v Department of Planning and Environment [2016] NSWCATAD 42
Category: Principal judgment
Parties: Shenhua Watermark Coal Pty Limited (Applicant)
Department of Environment and Planning (Respondent)
Representation: Minter Ellison (Applicant)
Crown Solicitor (Respondents)

File Number(s): 2018/0087555
Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondents on a confidential basis, namely Bundle 1 filed by the respondent on 29 June 2018 and documents filed by the respondent on 31 July 2018. That material is not to be released to the public.

REASONS FOR DECISION

Background

In October 2008 Shenhua Watermark Coal Pty Ltd (Shenhua) was granted an exploration licence – EL7223 – in the Liverpool Plains region of NSW. The licence gave Shenhua an exclusive right to explore for resources, but not to begin mining. The exploration licence was renewed in 2012 and a further renewal was sought by Shenhua in 2016 and amended in 2017. The renewal of EL7223 was granted on 13 July…

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 Shenhua Watermark Coal Pty Limited v Department of Planning...

Details

AGLC: Shenhua Watermark Coal Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119
Case: [2019] NSWCATAD 119
Decision Date: 17 June 2019

CaseChat Overview and Summary

Shenhua Watermark Coal Pty Limited sought judicial review of a decision by the Department of Planning and Environment, which was to deny a request for access to certain documents under the Government Information (Public Access) Act 2009 (GIPA). The dispute centred around the disclosure of information that the Department claimed was exempt from public access due to various statutory exceptions, including those related to the competitive commercial value of the information and the potential prejudice to business and commercial interests.

The primary legal issues before the court were whether the information provided to the Department was intended to be confidential, and if the disclosure of such information could reasonably be expected to diminish its competitive commercial value or prejudice the business and commercial interests of the third party. Additionally, the court had to consider whether the public interest in disclosing the information outweighed the potential harm to competitive commercial value and business interests.

In addressing these issues, the court found that the onus was on the applicant to establish an overriding public interest against disclosure. The court held that the applicant had not discharged this onus. It was determined that the information was not provided in confidence and that the disclosure would not reasonably diminish the competitive commercial value of the information nor prejudice the business and commercial interests of the third party. The court also found that the public interest in disclosure did not outweigh the potential harm to competitive commercial value and business interests.

The court affirmed the decision of the Department of Planning and Environment, with some redactions of personal information in the documents by consent of the parties.

Orders

Orders of the court

1. By consent, the decision under review is varied to the extent that personal information is redacted from documents 2, 3, 4, 9, 12, 13, 20, 21 and 22 in accordance with the consent agreement filed with the Tribunal on 28 August 2018.

2. By consent, the decision under review is varied to the extent that personal information as agreed between the parties is redacted from documents 1 and 14.

3. The decision under review is otherwise affirmed.

Background

Background to the litigation

Full text does not contain this section.

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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Actions

Citations

Shenhua Watermark Coal Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119

Most Recent Citation

Moran v Shellharbour City Council [2022] NSWCATAD 112

Cases Citing This Decision

Sydney Fish Market Pty Ltd v Infrastructure NSW [2025] NSWCATAD 131
Citation 1

…296 re Waterford and Department of Treasury (no 2) [1984] AATA 67 Shenhua Watermark Coal Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119 Transport for NSW v Searle [2018] NSWCATAP 93 Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175 Texts Cited: None cited Category: Princ…
Darley v City of Parramatta (No 2) [2025] NSWCATAD 86
Citation 2

…c Service Assn v Premier's Department [2002] NSWADT 277 Shenhua Watermark Coal Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119 Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248 Taylor v Destination NSW [2017] NSWCATAD 272 Taylor v Owners - Strata Plan…
Cahalan v Lane Cove Council [2023] NSWCATAD 209
Citation 3

…remetis v Department of Communities and Justice [2020] NSWCATAD 317 Shenhua Watermark Coal Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119 Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248 Taylor v Destination NSW [2017] NSWCATAD 272 Thomson v Commissi…
Moran v Shellharbour City Council [2022] NSWCATAD 112
Citation 4 (Para 127)

…In Shenhua Watermark Co Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119, the Tribunal found when assessing the public interest consideration at [45]:…

See all citing cases →

Cases Cited

Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71
Citation 1 (Para 44)

…osure would give a competitor an insight into the business of the documents’ owner” ( Meriton Property Services Pty Ltd & Ors v UrbanGrowth NSW [2017] NSWCATAD 71 at [135]).…
Watts v Department of Planning and Environment [2016] NSWCATAD 42
Citation 2 (Para 18)

…nterest in government information relating to mining and exploration in previous cases, for example in Watts v Department of Planning and Environment [2016] NSWCATAD 42 where the Tribunal observed at [66] - [67] that:…
Raven v The University of Sydney [2015] NSWCATAD 104
Citation 3 (Para 16)

…ons that favour disclosure. The Note does not form part of the Act and the matters set out there are illustrative only ( Raven v University of Sydney [2015] NSWCATAD 104 and Commissioner of Police, NSW Police Force v Barrett [2015 NSWCATAP 68). As the Appeal Panel stated in Barrett , the only limitation of factors fav…
Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252
Citation 4 (Para 42)

…(see McKinnon v Blacktown City Council [2012] NSWADT 44 at [77]-[78]; Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at [74]).…
Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80
Citation 5 (Para 28)

…In Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80 the Appeal Panel stated that the question as to whether information is “confidential information” is to “be examined, primarily at least, by reference to the agency’s evidence as to the conditions under which it conducts the servic…
Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195
Citation 6 (Para 43)

…rcial or business context. In Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 at [160], the Tribunal held that the descriptor “competitive” implied that the information would need to provide the person with a competitive edge.…
McKinnon v Blacktown City Council [2012] NSWADT 44
Citation 7 (Para 42)

…which the entity is engaged or if a genuine arms-length buyer is prepared to pay to obtain the information (see McKinnon v Blacktown City Council [2012] NSWADT 44 at [77]-[78]; Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at [74]).…
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Citation 8 (Para 27)

…of fact to be established to the relevant standard of proof, on the balance of probabilities ( Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].…
Leech v Sydney Water Corporation [2010] NSWADT 298
Citation 9 (Para 26)

…In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term “could reasonably be expected to” and stated at [25]:…
Macquarie University v Howell (No 2) [2009] NSWADTAP 19
Citation 10 (Para 29)

…In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 the Appeal Panel said:…
Attorney-General's Department v Cockcroft [1986] FCA 39
Citation 11 (Para 25)

…The words “could reasonably be expected to” are to be given their ordinary meaning ( Attorney-General’s Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words:…

Legislation Cited

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention
Government Information (Public Access) Act 2009 (NSW)
1 mention (from Para 2)
Mining Act 1992 (NSW)
1 mention (from Para 19)

Medium Neutral Citation:	Shenhua Watermark Coal Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119
Hearing dates:	On the papers
Date of orders:	17 June 2019
Decision date:	17 June 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	1. By consent, the decision under review is varied to the extent that personal information is redacted from documents 2, 3, 4, 9, 12, 13, 20, 21 and 22 in accordance with the consent agreement filed with the Tribunal on 28 August 2018. 2. By consent, the decision under review is varied to the extent that personal information as agreed between the parties is redacted from documents 1 and 14. 3. The decision under review is otherwise affirmed.
Catchwords:	ADMINISTRATIVE LAW – administrative review - Government Information – third party consultation - public interest considerations against disclosure – whether information provided in confidence – whether disclosure could reasonably be expected to diminish competitive commercial value of information – whether disclosure could prejudice business and commercial interests – onus on third party applicant to establish an overriding public interest against disclosure – onus not discharged
Legislation Cited:	Government Information (Public Access) Act 2009 Mining Act 1992 Mining Regulation 2010 Mining Regulation 2016
Cases Cited:	Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80 Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Leech v Sydney Water Corporation [2010] NSWADT 298 Macquarie University v Howell (No 2) [2009] NSWADTAP 19 McKinnon v Blacktown City Council [2012] NSWADT 44 Meriton Property Services Pty Ltd & Ors v UrbanGrowth NSW [2017] NSWCATAD 71 Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 Raven v University of Sydney [2015] NSWCATAD 104 Watts v Department of Planning and Environment [2016] NSWCATAD 42
Category:	Principal judgment
Parties:	Shenhua Watermark Coal Pty Limited (Applicant) Department of Environment and Planning (Respondent)
Representation:	Minter Ellison (Applicant) Crown Solicitor (Respondents)
File Number(s):	2018/0087555
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondents on a confidential basis, namely Bundle 1 filed by the respondent on 29 June 2018 and documents filed by the respondent on 31 July 2018. That material is not to be released to the public.