Stephen Totterman v Richmond Valley Council and Ayr Investments Pty Ltd

[2025] NSWCATAD 75

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Stephen Totterman v Richmond Valley Council and Ayr Investments Pty Ltd [2025] NSWCATAD 75

Hearing dates:

7 March 2025

Date of orders:

31 March 2025

Decision date:

31 March 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

EA MacIntyre, Senior Member

Decision:

(1) The administratively reviewable decision under review is set aside.

(2) The administratively reviewable decision under review is remitted to Richmond Valley Council for reconsideration in accordance with these reasons.

Catchwords:

ADMINISTRATIVE LAW - administrative review - government information - access application - enforceable right to access government information - presumption in favour of disclosure of government information - overriding public interest against disclosure - public interest considerations against disclosure - public interest considerations in favour of disclosure - balance - deliberations of government - risk of harm or serious harassment or serious intimidation - endangering security of or prejudice to system or procedure - personal information - client legal privilege

ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90

Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254

Streater v Tamworth Regional Council [2024] NSWCATAD 195

Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248

Totterman v Richmond Valley Council [2024] NSWCATAD 368

Texts Cited:

None

Category:

Principal judgment

Parties:

Stephen Totterman (Applicant)
Richmond Valley Council (First Respondent)
Ayr Investments Pty Ltd (Second Respondent)

Representation:

Counsel:
A Hannam (First Respondent)

Solicitors:
Stringybark Legal (Applicant)
Shaw Reynolds Lawyers (First Respondent)

Other:
P Weekes (Agent) (Second Respondent)

File Number(s):

2024/00360972

Publication restriction:

None

REASONS FOR DECISION

1. This is a review of a decision made by Richmond Valley Council (“Council”) to refuse access to certain information. The information was sought by Stephen Totterman (“Applicant”) and concerns certain development activity at Broadwater in NSW. That information was sought under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”).

Background

2. On 13 June 2024, the Applicant made an access application under s 41 of the GIPA Act to Council seeking government information.

3. The application made to Council sought access to the following documents:

1. documents identified in “Annexure A” of the Applicant’s access application concerning certain development activity;

2. Council’s records relating to certain land at Broadwater in NSW from 2 August 2023 to 6 October 2023 and from 8 February 2024 to 13 June 2024;

3. Written correspondence between Council and the owner of the land, Ayr Investments Pty Ltd, or their servants or agents from 2 August 2023 to 6 October 2023 and from 8 February 2024 to 30 June 2024.

4. On 23 July 2024, Ms Amy Yared of Ayr Investments Pty Ltd wrote to Council objecting to the release of certain documents to the Applicant.

5. On 29 July 2024, Council determined the Applicant’s access application. Council identified 39 documents in answer to categories (2) and (3) of the access application set out at [3] above. Together with the documents identified in category (1), a total of 92 documents arose for consideration.

6. Of the 92 documents Identified, Council determined that 9 documents were to be released and 83 to be withheld.

7. Six of the withheld documents were not provided to the Applicant on the basis of Council’s claim for client legal privilege.

8. The remaining documents were withheld on the basis of a claim by Council that the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure.

9. On 30 September 2024, the Applicant applied to the Civil and Administrative Tribunal (“Tribunal”) for administrative review of Council's determination of the Applicant’s access application.

10. Ayr Investments Pty Ltd applied to be joined to the proceedings. By decision made on 9 December 2024, the Tribunal made orders for them to be so joined (Totterman v Richmond Valley Council [2024] NSWCATAD 368). They are the second respondent to these proceedings (“Second Respondent”).

11. Before the hearing of the present matter, the Applicant and Council had reached agreement as to what information was to be released and what documents were to be withheld. The agreement made contemplated the release of documents that were not released under the decision under administrative review in these proceedings. They sought a decision from the Tribunal giving effect to what they had agreed. The Applicant specifically requested that the Tribunal provide reasons for its decision. There were no submissions made or evidence given by the Second Respondent in support of a different outcome.

Applicant’s right to information

12. The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing “a system of responsible and representative democratic Government that is open, accountable, fair and effective” (s 3(1)(b) of the GIPA Act).

13. A person who makes an access application for government information has a “legally enforceable right to be provided with access to the information” (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.

14. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1), including:

“(a)   deciding to provide access to the information

….

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information.”

15. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government information (s 12(1) of the GIPA Act). However, the right to access will not be available where “there is an overriding public interest against disclosure of the information” (s 9 of the GIPA Act).

16. There is an overriding public interest against disclosure of government information for the purposes of the GIPA Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13 of the GIPA Act). The considerations listed in the table under s 14 of the GIPA Act are the only relevant considerations that may be taken into account in determining whether there is an overriding public interest against disclosure (s 14(2) of the GIPA Act).

17. It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 of the GIPA Act (s 14(1) of the GIPA Act).

18. The power of the Tribunal to review a decision of an agency arises where a person is aggrieved by a “reviewable decision” of the agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) of that decision (s 100 of the GIPA Act).

19. What are “reviewable decisions” of an “agency” is set out in s 80 of the GIPA Act. They include a decision to provide access or to refuse to provide access to information in response to an access application (s 80(d) of the GIPA Act).

20. There was no dispute that Council is an “agency”.

21. An agency has made a “reviewable decision” within the meaning of s 80 of the GIPA Act, the agency being Council and the “reviewable decision” being the decision to refuse to provide access to the information issue, in response to the Applicant’s access application.

22. The Tribunal under s 63 of the ADR Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.

23. The provisions of the GIPA Act referred to above apply where the Applicant has made a valid “access application” seeking “government information”. It is not in issue that the Applicant made an “access application” under Part 4 of the GIPA Act and that the information requested was “government information” (see definition of these terms in s 4 of the GIPA Act).

24. Council has the onus of establishing that the decision is justified (s 105(1) of the GIPA Act).

Consideration

25. In circumstances where the Applicant and Council are in agreement as to what documents should be released and what documents are to be withheld, an initial question of jurisdiction arises. The power of the Tribunal to review a decision of an agency arises where a person is “aggrieved” by a “reviewable decision” of the agency. Where, however, the parties are in agreement as to what documents should be released and what documents should be withheld, a question arises as to whether the Applicant can be said to remain “aggrieved”.

26. In circumstances where the decision under administrative review stands and has not been replaced with a new decision that accords with the parties’ agreement, I accept that the decision which aggrieved the Applicant remains the decision of Council, so enlivening the jurisdiction of the Tribunal.

27. Where the parties are in agreement as to what information should be released and what information should be withheld, such an agreement does not bind the Tribunal. Where an applicant seeks the Tribunal’s review of a reviewable decision, the Tribunal is required to review the decision under administrative review in accordance with the legislation, regardless of any agreement made as between the parties. Council, not having made a new decision in the terms agreed, submits that the Tribunal should exercise its powers under s 63(3)(c) of the ADR Act to set aside the decision under administrative review and make a substitute decision in the terms agreed.

28. The Applicant submitted that the agreement he has reached with Council was simply an agreement between them and nothing more. It did not amount to consent on his part to the orders proposed by Council. The Applicant sought the Tribunal’s determination of the matter before it and reasons. I will go on to make that determination below and provide reasons.

29. Other than where there is a conclusive presumption of an overriding public interest against disclosure, the Tribunal, in reviewing a decision before it, is to determine where the balance lies between the public interest considerations for and against disclosure. In Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248, the balancing exercise required to be carried out was described in the following terms:

“The test in section 13 requires the Tribunal as decision-maker to attribute weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information: Hurst v Wagga Wagga City Council [2011] NSWADT 307; Flack v Commissioner of Police, NSW Police [2011] NSWADT 286. The GIPA Act provides no set formula for calculating the weight of considerations for determining whether one set of considerations outweighs the other, and the Tribunal has stated that "any reasonable approach that follows section 15 principles seems to be acceptable ... it is really a matter of placing identified considerations in order of priority or importance": Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at paragraph [96]. The balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at paragraph [17].The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation" (Battin v University of New England [2013] NSWADT 73 at [74]; Else v Transport for NSW [2021] NSWCATAD 59, at [18])”.

30. In Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254, the Appeal Panel said, at [59]:

“ … when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses”.

31. Section 15 of the GIPA Act sets out the principles that apply when determining whether there is an overriding public interest against disclosure:

“(a)  Agencies must exercise their functions so as to promote the object of this Act.

(b)  Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)  The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)  The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)  In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information”.

32. Council identifies particular documents by numbering used in the “Schedule of Documents” forming part of the decision under review (“Schedule”). I will use that numbering in these reasons. I have relied on the description of each such document in the Schedule.

Out of scope information

33. Some of the documents identified by Council fell outside the date range of the Applicant’s access application. The documents falling outside the date range of the Applicant’s access application are numbered 17, 18, 20, 21 and 22 identified in the Schedule.

Revealing deliberations

34. In the decision under review, Council decided not to release certain documents by reason of the weight it gave to the considerations against public disclosure set out in cl 1(e) in the table under s 14 of the GIPA Act. There were 48 such documents. That provision applies to certain information concerning deliberations of Council. In these proceedings, however, Council submitted that it no longer relied on the considerations set out in cl 1(e) it relied upon initially, to withhold release of the 48 documents in question.

35. Clause 1(e) provides as follows:

“1   Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) —

……

(e)  reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,”.

36. In the decision under administrative review in this matter, Council had identified the considerations in cl 1(e) as a relevant public interest consideration against disclosure for 48 documents. At the hearing, Council submitted that whilst many of the 48 documents revealed Council’s deliberative processes including Council’s assessment of a development, Council now accepted that disclosure could not be said to prejudice those deliberative processes. Consequently, the considerations set out in cl 1(e) did not apply. I accept Council’s reasoning and submissions.

Endangering the security of, or prejudicing any system or procedure

37. In the decision under administrative review in these proceedings, Council had also relied on the considerations set out in cl 2(e) of the table under s 14 of the GIPA Act to withhold the release of certain documents. That clause provides as follows:

“2   Law enforcement and security

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)—

….

(e)  endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle,”.

38. In the decision under administrative review in these proceedings, the considerations set out in cl 2(e) were relied upon to withhold disclosure of 5 documents. The documents identified certain a security code for obtaining access to a property. However, the evidence was that the gate code changed frequently. In its submissions at the hearing, Council indicated that, having regard to the evidence as to frequent changes in the security code, it would no longer rely on cl 2(e) and that the 5 documents in issue should be released. I accept Council’s reasoning and submissions in this regard, subject to my findings below as to document A60.

39. An email chain identified as document A60 contained details of systems and procedures to secure property and equipment. Council submitted that the considerations set out in cl 2(e) would be applicable in this instance. Those considerations would, in Council’s submission, outweigh any public interest considerations in favour of disclosure. Accordingly, Council submitted that this document should not be released.

40. I accept these submissions from Council. The considerations set out in cl 2(e) outweigh any public interest considerations in favour of disclosure including those set out in s 12 of the GIPA Act and the notes to that section. The dangers created by disclosure of information about systems and procedures to secure property and equipment outweigh public interest considerations (if any) in favour of disclosure.

Risk of harm or of serious harassment or serious intimidation

41. Council relied on cl 3(f) to withhold disclosure of certain documents. Clause 3(f) in the table under s 14 provides as follows:

“3   Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

…..

(f)  expose a person to a risk of harm or of serious harassment or serious intimidation,”.

42. Council relied on this consideration to withhold the disclosure of 34 documents.

43. For cl 3(f) to be brought to bear, any harm relied upon must be “a real and substantial detrimental effect on a person, rather than on their business interests”. The detrimental effects may be to a person's physical, psychological or emotional well being (AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90, at [85]). Further, the determination of the question needs to objective (AEZ, at [95]). This requires assessment of future risks consequent upon disclosure (Streater v Tamworth Regional Council [2024] NSWCATAD 195, at [67]).

44. There was evidence of a history of disputation between the Applicant and Ms Amy Yared of the Second Respondent. That disputation arose out of certain development activity alleged to have been carried out by the Second Respondent on land at Broadwater in NSW. The Second Respondent’s allegation was that the Applicant had come near the land in question and taken photographs. What was alleged against the Applicant was a three-year campaign of “stalking, intimidation and harassment”. In the Second Respondent’s submission, the Applicant wanted the documents he sought to perpetuate his alleged harassment and intimidation.

42. Ms Yared had sought an apprehended personal violence order (“APVO”) against the Applicant in the Local Court. Those proceedings were listed for final hearing on 5 May 2025. In the meantime, an interim APVO had been imposed.

43. The Applicant, for his part, says that he had observed development activity being carried out by the Second Respondent which the Applicant had reported to Council. He had also commenced proceedings in the NSW Land and Environment Court against the Second Respondent claiming the development to be unlawful. The Applicant submitted that he was engaged in the relevant litigation in the public interest in order to have Council protect what he said was sensitive coastal land zoned for environmental protection.

44. The Applicant denied the allegations against him. He submitted that the APVO had been made on an interim basis and was being contested by him. There was no evidence as yet heard by the Local Court as at the date of hearing of this matter.

45. Council’s submission was that there was insufficient evidence before the Tribunal substantiating the allegations made of alleged stalking, intimidation and harassment. Council, in these circumstances, submitted that the Tribunal could not find on the balance of probabilities that the disclosure of any of the 34 documents in question could reasonably be expected to expose a person to a risk of harm or serious harassment or serious intimidation so as to invoke consideration of cl 3(f). Accordingly, in Council’s submission, the relevant documents should be disclosed.

46. I am in agreement with Council’s submission. There is insufficient evidence before the Tribunal to substantiate any allegations of intimidation or harassment of the kinds alleged by the Second Respondent. The Tribunal notes in this regard that the hearing in the Local Court as to Ms Yared’s claim for an APVO had not been heard at the time of the hearing of this matter. The Applicant says that he will contest those proceedings. Evidence of the Applicant coming near the land owned by the Second Respondent and taking photographs of development activity is not, of itself, sufficient to allow me to make a finding that there has been intimidation or harassment of a kind that comes within cl 3(f).

47. In the absence of sufficient evidence, I am unable to place such weight on the considerations set out in cl 3(f) so as to outweigh the public interest considerations in favour of disclosure.

48. Development activity is a matter of public interest in local communities and more broadly. Disclosure of information by government about development activity could reasonably be expected to promote open discussion of public affairs concerning development, enhance the accountability of government in what it does to manage development and contribute to positive and informed debate on issues of public importance surrounding development. These are considerations that outweigh any considerations against disclosure, including any arising under cl 3(f).

Client legal privilege

52. Council’s submission was that a number of documents sought by the Applicant did not need to be produced as a consequence of a conclusive presumption against disclosure. That conclusive presumption against disclosure, in the submission of Council, arose on the basis that the information would be privileged from production in legal proceedings because of client legal privilege. That conclusive presumption is found in s 14 and Schedule 1, cl 5 of the GIPA Act.

53. Council continued to rely on client legal privilege to withhold the release of 6 documents. They were documents 16, 24, 25, 26, 27 and 29 identified in the Schedule. Council submitted that each of those documents was a confidential document that was prepared for the dominant purpose of Council being provided with professional legal services relating to proceedings in which Council was a party. On the evidence before me, I accept Council’s submissions and find that there is a conclusive presumption against disclosure of the information Council says is protected by client legal privilege. There was no evidence or submission contesting Council’s claim to client legal privilege.

Personal information

54. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information (table to s 14, item 3(a) of GIPA Act). Council’s submission was that any release of documents should be made subject to the redaction of personal information of the Second Respondent and Ms Yared. In particular, redaction was sought of contact details such as mobile phone numbers, email addresses and street addresses as well as signatures.

55. I am in agreement with Council’s submissions. The public interest considerations against the disclosure of such personal information, in my opinion, outweigh public interest considerations, if any, in favour of the disclosure of such information in the circumstances at hand. I understood the Applicant not to object to any such redactions.

56. In conclusion, I find as follows:

1. Disclosure cannot be said to prejudice Council’s deliberative processes. Consequently, the considerations set out in cl 1(e) do not apply to prevent disclosure.

2. There is no basis for reliance on cl 2(e) to prevent a release of documents except for document A60.

3. There is insufficient evidence before the Tribunal to substantiate any allegations of intimidation or harassment of the kinds alleged by the Second Respondent so that cl 3(f) cannot be relied upon to prevent release of documents.

4. There is a conclusive presumption against disclosure of the information protected by client legal privilege.

5. The public interest considerations for disclosure outweigh any considerations against disclosure, other than for document A60, documents the subject of client legal privilege and personal information of the Second Respondent and Ms Amy Yared.

6. The personal information of the Second Respondent and Ms Amy Yared in the nature of contact details, including mobile phone numbers, email addresses and street addresses, is to be redacted from any documents released to the Applicant.

Release of document and agreement of parties

57. On 14 February 2025, Council released to the Applicant document 26 identified in the Schedule. This was one of the documents subject to Council’s claim for client legal privilege.

58. At the hearing, the Applicant indicated that he agreed with the position of Council as to what documents should be withheld and what documents should be released. The Applicant indicated that he supported the revised assessment made by Council in which Council cited a lack of evidence to support the objections of the Second Respondent to the release of information, except for one document, being document A60. The Second Respondent, at the hearing, made no submissions opposing the release of documents to the Applicant as agreed between the Applicant and Council.

59. For the reasons set out above, the Tribunal accepts on the evidence before it that the agreed position as between the parties accords with the provisions of the GIPA Act as to what information should and should not be released. In these circumstances, what remains to be determined by the Tribunal is what orders ought to be made to dispose of the proceedings.

60. Council’s submission was that the correct and preferable decision would be for the Tribunal to set aside the decision under review and make a decision in substitution for the administrative reviewable decision, in accordance with the agreed position as between the parties.

61. The orders sought by Council appear justifiable on the basis of the evidence and submissions before the Tribunal. However, that evidence was not complete. The documents in issue were not provided to the Tribunal for its review and consideration. What the Tribunal has is a description of the documents in issue as set out in the Schedule and the submissions. In the absence of inclusion of the documents under review in the evidence, the appropriate course is to set aside the administratively reviewable decision under review and to remit the matter to Council for reconsideration in accordance with these reasons.

62. The Tribunal notes that a number of documents had been released to the Applicant pursuant to the decision under review. They are identified in the Schedule as documents 13, 14, 15, 36, 37, 38, 39, A7 and A8. These documents are described in the Schedule and there was no contestation concerning these documents.

Orders

1. The administratively reviewable decision under review is set aside.

2. The administratively reviewable decision under review is remitted to Richmond Valley Council for reconsideration in accordance with these reasons.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 31 March 2025