Sydney Fish Market Pty Ltd v Infrastructure NSW

[2025] NSWCATAD 131

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

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

Hearing dates:

7, 8, 9 and 30 August and 25 October 2024, final written submission 5 May 2025

Date of orders:

4 June 2025

Decision date:

04 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Redfern PSM, Senior Member

Decision:

(1)   Decision 105 is varied to release that part of the redacted information in document 004 adjacent to Item 5.

(2)   In respect of Decision 106:

(a)   iNSW’s decision is affirmed insofar as it concerns documents 013 to 042, 085, 104 to 106 and 107 to 124;

(b)   iNSW’s decision is varied to:

(i)   wholly release documents 055A and 062A; and

(ii)   withhold those parts of the documents responsive to Categories 1(e) (being documents 043 to 084) and 1(g) (being documents 086 to 102) which were redacted in accordance with the Open Bundle filed by iNSW on 1 August 2024 in these proceedings (Exhibit R2) but otherwise to release the non-redacted parts of those documents to SFM in accordance with Exhibit R2.

(iii)   insofar as it concerns documents 001 to 012:

(A) pursuant to s 63(3)(c) of the Administrative Decisions Review Act 1997 (ADR Act), set aside the decision in relation to Section 6 in each of the documents and substitute a decision that iNSW release those sections;

(B) pursuant to s 63(3)(d) of the ADR Act, set aside the decision in relation to Section 5 in each of the documents and remit that part of the decision to iNSW for reconsideration in accordance with the recommendations made in [361] of these reasons.

(C) otherwise affirm the decision to withhold the balance of documents 001 to 012.

(3)   Decision 109 is affirmed.

(4) These reasons for decision are not to be published, except to the parties and Multiplex, until 5pm 11 June 2025.

Catchwords:

ADMINISTRATIVE LAW – Government Information (Public Access)

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Freedom of Information Act 1982 (Cth)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180

Cameron v Commissioner of Police [2014] NSWCATAD 13

Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19

Electoral Commissioner, State Electoral Office v McCabe [2003] NSWADTAP 28

Eyes v Central Coast Council [2016] NSWCATAD 306

Fire Brigade Employees Union v Fire and Rescue NSW [2014] NSWCATAD 113

Jenkinson v Department of Education and Communities [2013] NSWADT 280

Leech v Sydney Water Corporation [2010] NSWADT 298

Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118

Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550

McKinnon v Blacktown City Council [2012] NSWADT 44

Meacham v Commissioner of Police [2020] NSWCATAP 107

Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7

Meriton Property Services Pty Limited and 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

Neary v State Rail Authority [1999] NSWADT 107

Owen v Commissioner of Police [2020] NSWCATAD 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:

Principal judgment

Parties:

Sydney Fish Market Pty Ltd (Applicant)
Infrastructure NSW (Respondent)
Multiplex Constructions Pty Ltd (Intervenor)

Representation:

Counsel:
A Searle (Applicant)
D Birch (Respondent)
Dr L Hilly (Intervenor)

Solicitors:
Ironbridge legal (Applicant)
Crown Solicitors (Respondent)
Pinsent Masons (Intervenor)

File Number(s):

2023/00423193

Publication restriction:

Pursuant to section 64(1)(c) and/or (d) of the Civil and Administrative Tribunal Act 2013 any confidential evidence filed with the Tribunal or given in a confidential hearing pursuant to section 107 of the Government Information (Public Access) Act 2009, is not to be disclosed without further order of the Tribunal.

Those paragraphs or parts of the paragraphs of these reasons identified as [Not for publication] are not to be released to the Applicant, Multiplex or the public without further order of the Tribunal.

REASONS FOR DECISION

Introduction

1. Between 22 August and 18 September 2023, the Sydney Fish Market Pty Ltd (SFM) made applications to the respondent, Infrastructure NSW (iNSW), for access to certain documents pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). iNSW made four decisions in respect of these applications which were the subject of dispute. iNSW released certain documents, without redaction, and partially released or refused to release other documents. This is an application for review of these decisions, lodged, on 22 November 2023. The requests for information relate to the construction of the new Sydney Fish Markets building in Blackwattle Bay.

2. There is no dispute that the application was filed within the relevant period. The application is made pursuant to the Tribunal’s administrative review jurisdiction under s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). On 21 February 2024, the Tribunal ordered that Multiplex Constructions Pty Ltd (Multiplex) may appear and be heard as a ‘person who could be aggrieved’ pursuant to s 104(3) of the GIPA Act.

3. The proceedings were originally listed for hearing in July 2024 but were adjourned at the request of the parties, with further directions made about the filing of evidence. The proceedings were relisted for hearing for three days commencing 7 August 2024, with a further hearing on 30 August 2024. Oral submissions were made by the parties and Multiplex on 25 October 2024 following a timetable for closing submissions. The parties provided the Tribunal with multiple affidavits, Exhibits and submissions, some which were confidential to the Tribunal, some of which were restricted in access to certain parties and some which were open, namely unrestricted but containing redactions. The hearings were conducted in open and closed sessions, and, in the latter hearings, there were sessions involving, first, the Tribunal and iNSW, secondly, the Tribunal, iNSW and Multiplex, thirdly the Tribunal, iNSW and SFM and finally the Tribunal, the parties and Multiplex. These latter hearings were public.

4. On the first day of the hearing, and subsequently as further evidence was sought to be tendered or submissions served, various confidentiality orders were made as between the parties and Multiplex. Notably, each of the parties provided evidence and documents where access was to be limited to the Tribunal only or to the Tribunal and named parties. In order to preserve the claimed confidentiality of the evidence and documents, a number of detailed and complicated confidentiality orders were made involving numerous documents, parts of documents and evidence. The parties and Multiplex obtained a transcript of the proceedings and access was provided to the relevant parts of the transcript consistent with the confidentiality orders. The parties and Multiplex were legally represented, and Counsel appeared for each of the parties on all occasions.

5. On 2 May 2025, I conducted a directions hearing to clarify some submissions made and to discuss with the parties the final form of the proposed orders and issues arising in relation to the publication of the decision and the various confidentiality orders that had been made. As a result of this directions hearing, directions were made for iNSW to clarify some aspects of it claims in relation to one of the disputed documents. By email dated 5 May 2025, iNSW notified the Tribunal, SFM and Multiplex that it consented to the release of information that had been redacted in one of the disputed documents. This consent has been reflected in this decision and the orders made.

6. The confidentiality orders made have required the publication of four versions of the decision, although where possible I have attempted to include sufficient detail in the reasons about the matters of substance without disclosing confidential information so that redactions and non-publication orders can be kept to a minimum. The first version is published only to iNSW and includes the detail of all confidential information provided by all parties and Multiplex. The second version published only to Sydney Fish Market and iNSW, includes confidential information relating to both where there has been disclosure between them. The third version published only to iNSW and Multiplex includes confidential information relating to both where there has been disclosure between them. The final version is the open reasons that do not include any confidential information and is publicly available. In summary, these latter reasons include redactions covering all confidential information.

7. I have decided to affirm, vary and set aside various aspects of the decisions under review. My reasons follow.

Background

8. SFM is the privately owned operator of the existing Sydney Fish Market, which operates from the foreshores of Blackwattle Bay, Glebe. iNSW is managing a project to build the new Sydney Fish Market, also in Blackwattle Bay, adjacent to the existing Sydney Fish Market. Transport for NSW owns the land, which was leased to UrbanGrowth NSW Development Corporation. iNSW replaced UrbanGrowth NSW in 2019.

9. Multiplex, a global construction company, has been contracted to construct the new Sydney Fish Market, which also involves the construction of retail, food and beverage outlets, wholesale facilities and auction rooms, offices, the Sydney Seafood School and parking on the site. This construction project is referred to in many of the documents and the submissions as the new Sydney Fish Markets Project (the new SFM Project). The contract is a design and construct contract between Multiplex and iNSW entered into on 22 October 2022, amended by deed of variation dated 5 February 2021, referred to in these reasons as the ‘Main Works Contract’. Certain parts of the Main Works Contract are in the public domain and certain parts are confidential. The Main Works Contract includes provisions relating to scope of the works, the contract price, the evaluation and monitoring of the work by iNSW through reporting and meetings, confidentiality provisions, variations, extensions of time (and any resulting changes to completion dates), delay costs, liquidated damages and claims or dispute resolution processes.

10. iNSW has agreed to lease the new Sydney Fish Market, once constructed, to SFM. The obligations in relation to the lease are set out in an agreement for lease (AFL) dated 19 February 2019 signed by SFM and UrbanGrowth NSW, iNSW’s predecessor. Under the AFL, SFM is to be the head tenant of the new Sydney Fish Market site once it is completed. On completion of the new Sydney Fish Market site, iNSW will transfer ownership of the site to another agency, which will enter into a lease with SFM. The AFL, which was varied by Deed of Variation dated 16 October 2020, provides that iNSW will procure the construction of works on the land in accordance with the ‘base building brief’ requirements set out in the deed. iNSW will then grant leases to SFM, including a wharf lease, in accordance with the deed. SFM will surrender the existing leases to enable vacant possession divestment of the existing site for future development. SFM must surrender the existing leases and secure the surrender of sub-tenancies in the existing site to achieve a vacant possession as soon as practicable, but no later than the commencement date, which is the date immediately after the date of practical completion. Practical completion under the AFL is when construction of the building has been finalised, as described in the base building brief. This includes the finalisation of fit out works. There are detailed provisions dealing with practical completion, independent certification of practical completion and the ownership of fit out works.

11. Relevant to the issues in dispute is cl 11 of the AFL which provides for the obligations and rights between the parties in relation to the design of the building works. In brief, iNSW is to provide updates in the progress of the design documents and must provide these documents to SFM in accordance with the design milestones referred to in the AFL. SFM must provide comments on the draft documents. The design documents must meet the functional requirements as referred to in the AFL and in the event of dispute, as with all disputes governing generally under the AFL, a formal notice of dispute may be issued between the parties. Thereafter, there is a process for expert determination. Relevantly, cl 11 also provides that iNSW is entitled to develop the design of the new Sydney Fish Market building without any requirement for SFM consent or approval where design documents comply with functional requirements as set out in the base building brief. However, it is relevant to note, and there was much evidence about this during the hearings, that disputes remain about compliance with the functional requirements. Any changes to design made by iNSW must be notified to Multiplex. There are detailed procedures under the Main Works Contract dealing with variations.

12. In September 2019, the Expenditure Review Committee of Cabinet (ERC), approved a total budget of $836 million for the new SFM Project.

13. It is common ground between the parties and Multiplex that at the core of these proceedings are two contractual arrangements: namely the Main Works Contract between iNSW and Multiplex and the AFL between iNSW and SFM.

14. Notably, certain obligations of iNSW and SFM under the AFL are connected to the performance of the work under the Main Works Contract. For instance, obligations under the AFL are impacted by delays to the Main Works Contract and SFM has an obligation to pay moneys to iNSW where there have been extensions as a result of an extension caused by SFM. Where there are disputes under the AFL, there is a formal process for resolution set out in cl 22 and in the absence of agreement, expert determination. There are confidentiality and non-disclosure clauses in the contract.

15. SFM made four access applications under the GIPA Act for information about the development of the new Sydney Fish Market which are the subject of the application for review. iNSW made decisions in respect of each application.

16. SFM made two applications, which are the subject of dispute, on 22 and 28 August 2023. iNSW made decisions, referred to in the submissions and documents filed in the proceedings and in these reasons, as Decision 105 and Decision 106.

17. In Decision 105, iNSW identified 30 documents that responded to the application and released nine documents, without any redaction, partially released 10 documents and decided not to release 11 documents. The decision was made on 4 October 2023. The majority of these disputed documents were withheld or partially withheld based on the conclusive presumptions of cabinet information and legal professional privilege. These grounds were not disputed. By the time of the hearing there was only one document in dispute, which was released in redacted form. The basis for the redaction was that disclosure could reasonably be expected to prejudice a deliberative process of government or an agency or the effective exercise by an agency of an agency’s functions, being iNSW and other agencies in the Interagency Working Group (IWG) who were involved in the new SFM Project.

18. SFM amended its request for information in respect of the second access application made on 28 August 2023 to reduce the scope. In Decision 106, iNSW identified 128 documents that responded to the application and decided not to release 124 documents. The decision was made on 10 November 2023. The documents were either withheld or released in redacted form because the delegate found there was an overriding public interest against disclosure on the grounds that disclosure could reasonably be expected to diminish the competitive commercial value of any information to iNSW and/or Multiplex or prejudice their respective legitimate business, commercial or financial interests.

19. The delegate found that the information the subject of this request was contract information, and that the disclosure of this information would significantly prejudice Multiplex’s business, commercial and financial interests because it would weaken Multiplex’s competitiveness in the market, strengthen Multiplex’s competitors with the aid of Multiplex’s commercial sensitive information and impact Multiplex’s relationships with its current existing and future clients. The delegate further found the disclosure of the contract information would have the consequence that subcontractors and consultants may be unwilling to engage with Multiplex on existing terms and may only engage at a significant premium or be unwilling to tender and price for new work. This would ultimately increase trade costs for Multiplex when submitting bids for new work.

20. As the counterparty to the Main Works Contract, the delegate was also satisfied that the release of the information could reasonably be expected to diminish the competitiveness in the market which would ultimately impact iNSW’s procurement of similar contracts in the future and existing and the existing relationship with Multiplex, its contractors and consultants engaged in the delivery of the new Sydney Fish Markets. The delegate found that disclosure of contract information relating to pricing and risk management would be likely to prejudice iNSW in relation to future commercial negotiations it engages in for the new SFM Project because it would reveal commercially negotiated issues, the costs of resolving those issues and indirectly reveal the amount of funds available for future contingencies.

21. The delegate took into account the personal factors of SFM, noting the ongoing commercial nature of the relationship between SFM and iNSW which would include future commercial negotiations between the parties in relation to the leasing of the new Sydney Fish Market site.

22. SFM made two further applications for access, namely on 11 and 18 September 2023. iNSW made decisions, referred to in the submissions and documents filed in the proceedings and in these reasons, as Decision 108 and Decision 109.

23. In Decision 108, iNSW identified 61 documents that responded to the application and released 42 documents, without any redaction, partially released 15 documents and decided not to release 4 documents. The decision was made on 10 November 2023. By the time of the hearing, there was no longer dispute in relation to this decision.

24. In Decision 109, iNSW identified seven documents that responded to the application and released six documents, without any redaction, and decided not to release one document. The decision was made on 10 November 2023. The document was not released because the delegate found there was an overriding public interest against disclosure on the grounds that disclosure could reasonably be expected to prejudice the effective exercise by iNSW of its functions and could reasonably be expected to diminish the competitive commercial value of the information to iNSW and/or prejudice iNSW’s legitimate business, commercial or financial interests.

25. After the proceedings were commenced by SFM seeking merits review of the four decisions, the parties and Multiplex attempted to narrow the scope of the documents in dispute with some success.

26. As such, by the time of the hearing, there were 125 documents (including additional related documents in respect of the Decision 106) which were the subject of dispute, being document 004 (Decision 105), documents 001-102 and 104-124 (Decision 106) and document 003 (Decision 109). The dispute in relation to some of these disputed documents have been resolved and this is reflected in the current orders.

Statutory framework

27. The GIPA Act was introduced in 2009 to facilitate public access to government information.

28. Section 3 provides that the object and intent of the GIPA Act is as follows:

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by--

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament--

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

29. The objects are reflected in the provisions of the GIPA Act.

30. Part 2 sets out the General Principles for Open Government Information. Notably, s 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9 provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.

31. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides that nothing in the GIPA Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of public information. Examples of public interest considerations in favour of disclosure are set out in the Note to s 12 as follows:

Note--:The following are examples of public interest considerations in favour of disclosure of information--

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

32. Section 13 sets out how the public interest test must be assessed and provides that there is an "overriding public interest against disclosure" if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

33. Section 14 of the GIPA Act sets out the public interest considerations against disclosure and relevantly provides:

(1) 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.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

34. Section 14(1) provides that there are certain documents where it is “conclusively presumed” that there is an overriding public interest against disclosure. Those documents, or classes of documents, are set out in Schedule 1 of the GIPA Act and include, for instance, overriding secrecy laws (cl 1), cabinet information (cl 2), executive council information (cl 3), contempt (cl 4), legal professional privilege (cl 5), documents affecting law enforcement and public safety (cl 7), adoption and care and protection of children (cll 9 and 10) and Ministerial code of conduct (cl 11). There is no dispute in relation to this ground and the contentious issues that arise in relation to the public interest considerations referred to in s 14(2).

35. The Table to s 14(2) enumerates seven different grounds for public interest considerations that may be taken into account as public interest considerations against disclosure for the purposes of determining whether there is an overriding public interest against disclosure of government information. The seven grounds are: responsible and effective government (item 1); law enforcement and security (item 2); individual rights, judicial process and natural justice (item 3); business interests of agencies and other persons (item 4); environment, culture, economy and general matters (item 5); secrecy provisions (item 6) and exempt documents under Interstate Freedom of Information legislation (item 7).

36. Each of these grounds, with the exception of the exempt documents, require consideration of whether disclosure of the information “could reasonably be expected” to have one or more of the effects (or in the case of the secrecy ground, contraventions) outlined within each of the grounds. To establish one of the six grounds described in the Table it is therefore necessary to identify the listed effects (or contraventions) and make an assessment about whether disclosure of the requested information could reasonably be expected to have that effect or constitute a contravention.

37. Relevant to the decision under review and issues in this case are cll 1(e), 1(f), 4(c) and 4(d) to the Table as follows:

1. Clause 1(e): where disclosure could reasonably be expected to 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.

2. Clause 1(f): where disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.

3. Clause 4(c): where disclosure could reasonably be expected to diminish the competitive commercial value of any information to any person.

4. Clause 4(d): where disclosure could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.

38. Section 15 of the GIPA Act sets out the principles that apply to agencies and, relevantly, to the Tribunal, when making a determination as to whether there is an overriding public interest against disclosure of government information. Section 15 provides:

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles--

(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.

39. Part 3 deals with Open Access Information, namely the information that agencies are required to make publicly available.

40. Part 4 deals with Access Applications and Division 3 contains the provisions relating to the process for dealing with access applications. Section 53 of the GIPA Act sets out the obligations of an agency and the searches it must undertake once a request for information is received. Section 54 provides that an agency must take such steps, if any, as are reasonably practicable to consult with a person before providing access to the government information if the information is of a kind that requires consultation under the section, for instance, where the information includes personal information about a person (s 54(2)(a) of the GIPA Act). Section 55 states that an agency is entitled to take into account personal factors of the application, both in favour and against disclosure.

41. Division 4 includes the provisions relating to deciding access applications.

42. Section 58(1) provides that applications for review are to be decided by the agency: deciding to provide access to the government information sought (subs (a)); deciding that the information is not held by the agency (subs (b)); deciding that the information is already available to the applicant (subs (c)); deciding to refuse the application because there is an overriding public interest against disclosure (subs (d)); deciding to refuse to deal with the application (subs (e)) and deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact (subs (f)). Section 58(2) provides that more than one decision can be made in respect of a particular access application.

43. The decisions the subject of this review were made under ss 58(1)(a) and (1)(d) of the GIPA Act. iNSW also decided that certain information requested was not held by iNSW under s 58(1(c)) but SFM does not seek a review of this decisions.

44. Section 80 sets out the decisions of an agency which are “reviewable decisions” for the purposes of Part 5 of the GIPA Act. A decision to provide access or to refuse to provide access to information in response to an access application is reviewable (s 80(d)).

45. Section 100 provides that a person who is aggrieved by a reviewable decision may apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Section 104(3) of the GIPA Act provides that any person who could be aggrieved by a decision of the Tribunal on a review has a right to appear and be heard in any proceedings before the Tribunal in relation to the review.

46. Section 63 of the ADR Act provides that when undertaking a review, the Tribunal must make the “correct and preferable” decision based on the material before it at the time of the decision. In determining the application for review, the Tribunal may decide to affirm or vary the decision or set aside the decision and make a decision in substitution or set aside the decision and remit the matter for reconsideration by the administrator, in this case the respondent, in accordance with any directions or recommendations of the Tribunal. The onus is on the agency to justify access decisions made under the GIPA Act (s 105).

Legal principles

47. The parties and Multiplex are in broad agreement about the legal principles.

48. Section 12 recognises that there is a general public interest in favour of disclosure of government information, an example of which includes disclosure that could reasonably be expected to promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance.

49. There is a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure. The agency seeking to withhold the documents from disclosure bears the onus to justifying the decision. In undertaking the task, the agency (and the Tribunal standing in its shoes) must identify the public interest considerations in favour of disclosure and those against disclosure, which are limited to those considerations specified in s 14, and undertake a balancing exercise. In undertaking the balancing exercise, the decision maker, and therefore the Tribunal, must have regard to the principles in s 15 of the GIPA Act.

50. Consideration of the s 14 matters is a two-step approach (Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 (Camilleri) at [24]-[26]). The Tribunal must first identify one or more of the s 14 considerations then weigh those considerations against the factors favouring disclosure, being mindful of ss 12 and 15 of the GIPA Act. The agency must establish that the disclosure “could reasonably be expected” to have the effect outlined in the Table to s 14. This expression should be given the ordinary meaning, namely, whether it was reasonable as distinct from “irrational, absurd or ridiculous” (Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 (Cockcroft) at 190). The test to be applied is an objective one. It must be something more than “a mere possibility, risk or chance” and must be “based on real and substantial grounds” and not “purely speculative, fanciful, imaginary or contrived” (Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] and Transport for NSW v Searle [2018] NSWCATAP 93 (Searle) at [68]).

51. This is ultimately a question of fact. While there must be a “real” risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36].

52. As observed by the Appeal Panel in Searle at [68], in discharging the onus:

“It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way.”

(citation omitted)

53. The Appeal Panel held that the correct approach was to “give prominence to inferences drawn from the objective and otherwise established facts rather than the subjective views of witnesses”. However, in upholding the appeal, the Appeal Panel observed at [35] that evidence of the agency witnesses “went beyond mere opinion and included the basis for the views they expressed about the impact of disclosure on the future supply of information” at [63]. Ultimately, the Appeal Panel concluded:

“61.   We do think it is implicit that the Tribunal did set an overly demanding evidentiary requirement as identified by the appellant. In this regard, we are, particularly, persuaded by the weight of the references (as referred to in paragraphs 36 and 37 above) to the lack of specific evidence as to what suppliers of information would actually do in the hypothetical in issue. Given the administrative nature of the decision and the abstract and hypothetical subject matter, it does seem to us that the emphasis the Tribunal gave to such evidence not only overstated its potential significance but was also too stringent in approach.”

54. Where an applicant has not had access to disputed documents, it is important for the Tribunal to scrutinise the claims made in respect of the documents which have not been disclosed with an appropriate degree of scepticism: Electoral Commissioner, State Electoral Office v McCabe [2003] NSWADTAP 28 (McCabe).

55. To establish cl 1(e), the information must reveal a deliberation, consultation, opinion, advice or recommendation. It is necessary to establish that disclosure of the information could reasonably be expected to prejudice a deliberative process. This requires there to be a connection between the opinion, advice or recommendation and the relevant deliberative process (Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 at [103] and Fire Brigade Employees Union v Fire and Rescue NSW [2014] NSWCATAD 113 (Fire Brigade Employees Union) at [57]-[58]). In Cameron v Commissioner of Police [2014] NSWCATAD 13 (Cameron) at [63], the Tribunal described the deliberative process of an agency as “its thinking processes” including the process “by which it seeks internal input and discussion as to possible courses of action, evaluates the wisdom of them and the relative benefits and detriments of them”.

56. In re Waterford and Department of Treasury (no 2) [1984] AATA 67 at [58] in relation to similar provisions under the Freedom of Information Act 1982 (Cth), the expression “deliberative process” is wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency and

“…involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description.”

57. However, it does not include documents dealing with the purely procedural or administrative processes involved in the functions of an agency (at [59]).

58. The grounds in cl 1(e), 1(f) and 4(d) arise where there is “prejudice”. According to Searle at [68] (5) and (6):

“(5) “Prejudice” is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

(6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Cammilleri at [21], [22] and [26].”

59. The relevant prejudice will be established if the release of records reveals sensitive deliberations that could be reasonably expected to hinder future communications and thus impact on the ability of the agency to effectively address such issues (Cameron and Owen v Commissioner of Police [2020] NSWCATAD 296).

60. Clause 1(f) of the Table to s 14 refers to disclosure of information that could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions. To establish the relevant prejudice, the agency must identify its particular functions and then demonstrate how prejudice to the effective exercise of those functions arises (Fire Brigade Employees Union). In Jenkinson v Department of Education and Communities [2013] NSWADT 280, the Tribunal accepted that disclosure of the information in question could reasonably be expected to prejudice the effective exercise by the agency of its functions in respect of the health and wellbeing of staff because disclosure prejudices the supply to the Department of confidential information where the Department relied on the cooperation of employees in investigating complaints. There is some overlap with cl 1(d) in the context of an agency's assertion about the importance of obtaining confidential information in order to exercise its functions. However, cl 1(f) does not require that the information be provided in confidence.

61. Clause 4(c) provides that the information sought to be withheld must have a “competitive commercial value” that would be diminished if the information were disclosed. This is a question of fact.

62. In McKinnon v Blacktown City Council [2012] NSWADT 44 (McKinnon) the Tribunal held at [77]-[80] that information has commercial value if the information is valuable for the purposes of carrying on the commercial activity in which the entity is engaged. The respondent must show why and how the information has commercial value, including the commercial context in which the respondent operates and the significance of the information. In Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 (Media Research) the Tribunal found that the term “commercial value” refers to information that is valuable for the purposes of carrying on the commercial activity in which the person is engaged. The words “commercial value” are modified by the adjective “competitive” so that the phrase competitive commercial value connotes information of commercial value gained in or in relation to a competitive commercial or business context. This descriptor implies that the information would need to provide another person or entity with a competitive edge: Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195 (Nature Conservation Council of NSW) at [160].

59. This public interest consideration was examined by the Appeal Panel in Media Research as follows:

“46.   In our view, a bare statement setting out the amount paid annually under a contract by a government agency does not, on its face, involve anything that could be said, reasonably, to be of 'commercial value'.

47.   That quality only attaches to it, on the appellant's case, when it is put together with other information (sometimes called the 'mosaic' effect). For example, the interested rival might access the annual payments made for other contract periods and the original contract price, and then deduce what the pricing arrangement originally agreed was. The appellant would then be able to deduce that the pricing arrangement was a fixed or lump-sum one with an annual inflation adjustment. The rival would also deduce that the appellant had therefore offered an alternative pricing arrangement to the standard one (per-clip) in the bid process of 2006. It is in this way that the 'commercial value' case is mounted. The appellant then, via Mr O'Connell's affidavit, gives evidence that the 'commercial value' of this pricing arrangement for future bids could therefore be reasonably be expected to be 'destroyed' or 'diminished' (the second element of cl 7(1)(b)).

48.   In our view, information of 'commercial value' would ordinarily be information with a proprietary character, information of an internal character (such as specialised statistics) or information the product of some unique or special intellectual processes of a high order that might fall below the level of a 'trade secret'. There should, as we see it, be some uniqueness attaching to the information that justifies treating it as exclusive, secret or confidential.”

64. The public interest consideration against disclosure in cl 4(d) is broadly framed and the focus is on whether disclosure could reasonably be expected to prejudice legitimate business, commercial, professional or financial interests of a person. It is necessary for the applicant to identify the particular interest said to be prejudiced and to demonstrate the basis on which the finding can be made about the prejudice to those interests.

65. In Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175 at [77] the Tribunal was satisfied disclosure of the redacted information about another tenderer could reasonably be expected to diminish the competitive commercial value and prejudice the legitimate business, commercial, professional or financial interest of the other tenderer because the redacted information included details about the tenderer’s strengths and weaknesses, and specific information about a company, which might be used by that company's competitors in future tenders.

66. In determining whether there is an overriding public interest against disclosure of information, it is relevant under s 55 of the GIPA Act to take into account personal factors of the application, being the applicant's identity and relationship with any other person, the applicant's motives for making the access application and other factors particular to the applicant. The personal factors of the application can be taken into account as factors in favour of providing access and may also be taken into account as factors against providing access if those factors are relevant to consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to, relevant to the facts of this case, in the Table to s 14.

Outline of contentions

67. The parties and Multiplex provided detailed written submissions prior to and following the hearings (closing submissions). While those submissions are set out in detail later in these reasons, it is useful to provide an outline of the contentions made by the parties to provide context for the evidence before the Tribunal in relation to the disputed claims.

68. iNSW submits that, subject to some agreed variations, the Tribunal should affirm its decisions to refuse to provide access to the redacted material in the remaining documents the subject of dispute between the parties on the basis that there is an overriding public interest against disclosure on the grounds reflected in cl 1(e), 1(f), 4(c) and 4(d) of the Table in s 14 of the GIPA Act.

69. iNSW contends that at the core of the proceedings are two contractual arrangements: being the Main Works Contract between iNSW and Multiplex and the AFL between iNSW and SFM. There is no contract between Multiplex and SFM and the possibility of friction between iNSW’s two contractual arrangements gives rise to the prospect of considerable commercial disadvantage to iNSW. It is submitted that iNSW accordingly treats the two contractual arrangements as confidential as against each other and, in accordance with the express obligations, there are confidentiality provisions in the two contracts. iNSW submits that disclosure of the disputed documents could reasonably be expected to reveal a deliberation or consultation in such a way as to prejudice a deliberative process of government or an agency, prejudice the effective exercise by iNSW of its functions, diminish the commercial value of the information to iNSW and prejudice iNSW’s legitimate business, commercial or financial interests. iNSW relies on the evidence of two senior public servants, Mr Geoff Gerring and Mr Greg Lin, to support its claims.

70. As already noted, the majority of the documents withheld in part or in whole are the subject of Decision 106. These documents are the subject of claims by both iNSW and Multiplex, for different reasons, that the disclosure of those documents could reasonably be expected to diminish the competitive commercial value of any information to iNSW and/or Multiplex or prejudice the legitimate business, commercial, professional or financial interests of iNSW and/or Multiplex (as the case may be). Both iNSW and Multiplex submit that the disputed documents that are the subject of Decision 106 should be considered on a category-by-category basis. Multiplex relies on the evidence of the Construction Manager, David Maher, about why the information is commercially sensitive and should be treated as confidential and why the disclosure of the information would have a significant impact on the commercial interests of Multiplex. Multiplex submits, also subject to some minor variations, that the Tribunal should affirm Decision 106.

71. Whether the disclosure of the disputed documents could reasonably be expected to have the effect for which Multiplex and iNSW contend is a question of fact. SFM submits that in order to establish that disclosure could reasonably be expected to have one of the effects set out in the Table to s 14, the decision-maker would need to show more than a mere possibility, risk or chance of prejudice. The expectation must be based on “real and substantial” grounds: Searle at [63]. iNSW bears the onus.

72. SFM contends that when the Tribunal has regard to this evidence, it will not be satisfied the disclosure could reasonably be expected to have one or more of the effects claimed. SFM further contends that, even if the Tribunal is satisfied that one or more of the grounds set out in the Table relied upon by iNSW and/or Multiplex have been established, the Tribunal must still undertake a balancing exercise to weigh the considerations in favour of disclosure, as well as those against, to determine where the public interest lies. SFM submits that there is no overriding public interest against disclosure of the information the subject of dispute and the Tribunal should set aside the decision under review and substitute a decision to release the information. It relies on the evidence of Mr Michael Guilday, General Counsel and senior executive of SFM.

Material before the Tribunal

73. iNSW relies on the affidavits of Geoff Gerring, sworn 26 March 2024, and Greg Lin, sworn 28 March and 6 June 2024. Both affidavits include confidential information and Exhibits. In the case of Mr Lin, the Exhibit to his affidavit of 28 March 2024 is partially redacted and all of the Exhibit to the affidavit sworn 6 June 2024 is redacted. These affidavits, including the Exhibits, were provided to the Tribunal in unredacted form and to Multiplex and SFM, with redactions. There is no publication restriction on the redacted versions of these affidavits. Notably, the whole of Exhibit GL-1 to the affidavit of Greg Lin sworn 6 June 2024 is confidential.

74. Multiplex relies on the affidavits of David Maher sworn 22 April and 4 June 2024.

75. SFM relies on the affidavits of Michael Guilday sworn 15 May and 29 July 2024. The affidavits provided by Mr Guilday include confidential information. These affidavits were provided to the Tribunal and iNSW in unredacted form and to Multiplex with redactions. There is no publication restriction on the redacted versions of these affidavits.

76. The affidavits of Mr Gerring and Mr Lin include evidence about factual matters relevant to the new SFM Project, including evidence about the various contractual arrangements and progress of the project, and evidence about why they say disclosing certain information would prejudice responsible and effective government and relevant commercial interests of iNSW. The second affidavit of Mr Lin is in response to the affidavit of Mr Guilday.

77. The affidavit of Mr Maher also includes evidence about factual matters relevant to the new SFM Project and the Main Works Contract and evidence about why he says disclosing certain information would diminish the competitive commercial value of the information to Multiplex and prejudice Mutlipex’s legitimate business, commercial or financial interests. His second affidavit is in response to the affidavit of Mr Guilday.

78. Mr Guilday’s affidavits are a combination of contentions he makes in support of the application about why there is a public interest in disclosure of the information requested by SFM, contentions said to be relevant about the contractual arrangements between iNSW and SFM and iNSW and Multiplex and evidence about factual matters relating to the new SFM Project, in respect of which Mr Guilday has personal knowledge. He also includes contentions about why the evidence of iNSW and Multiplex does not establish that disclosure of the information could reasonably be expected to have the effect of prejudicing responsible and effective government or the relevant business, commercial and financial interests of iNSW and/or Multiplex.

79. iNSW and Multiplex objected to certain paragraphs of Mr Guilday’s affidavits on the basis that the evidence was hearsay, irrelevant or opinion without foundation. I formed the view that any such matters were self-evident and admitted the affidavits in their entirety, noting that it would ultimately be a question of the weight that should be attributed to this evidence.

80. The affidavits of Mr Guilday and Mr Lin reveal a history of lengthy negotiations and disputes between SFM and iNSW about the new SFM Project. This is clear from the evidence and undisputed facts. Some of the more contentious issues relating to the new SFM Project form the basis for the respective claims by the parties in these proceedings. On the one hand, SFM contends that some of these disputes and unresolved issues demonstrate why it is important that certain critical information is publicly disclosed to provide transparency and promote public debate. On the other, iNSW contends that one of the concerns is that disclosure of this information will result in, among other things, unnecessary distractions and delays to the new SFM Project by exacerbating further disputes with SFM and possibly sub-tenants.

81. In the end, it is for the Tribunal to form a view about whether disclosure of the information would be expected to have the effect for which iNSW and/or Multiplex contend based on the facts, as established. The witnesses for iNSW and Multiplex provide evidence about the underlying matters giving rise to their respective opinions about the impact of disclosure. Mr Guilday, or rather SFM, is entitled to question those opinions and has chosen to do so through an affidavit.

82. The approach I have taken is to outline the evidence provided in some detail, even where it is in the nature of submissions, and later set out my findings of fact in relation to those underlying matters.

Exhibits

83. The documents before the Tribunal comprised two open bundle of documents, seven volumes of the confidential documents which are the subject of dispute and the affidavits referred to above and attachments to the affidavits, including confidential attachments being the Main Works Contract and the AFL. The parties also provided extracts of other documents and Multiplex provided a confidential schedule (Exhibit M5) detailing the status of disputes in respect of the documents that have either been withheld or released with redactions in respect of Decision 106. This document is headed ‘Status of documents in categories 1(e), 1(f), 1(g), 1(h) and 1(j)’.

84. The open documents (Exhibit R1 and R2) include:

1. A redacted version of document 004 in Decision 105, being the minutes of the meeting of the IWG dated 21 May 2021. The minutes include the names of the parties who attended the meeting and the details of four of the six agenda items, including minutes relating to the Draft MOU, the draft terms of reference and governance arrangements.

2. The redacted version of the disputed documents the subject of Decision 106, being documents relating to categories 1(e) and 1(g).

85. iNSW also tendered a confidential cross-examination bundle (Exhibit R14), which included copies of documents relating to the new SFM Project.

86. Exhibit M5 is a schedule which refers to the documents in dispute the subject of Decision 106 and identifies those that are live issues currently in dispute, those issues that have been settled and are the subject to a settlement deed, those that are current and where there is a possible dispute and those matters that are not in dispute and are no longer current.

87. According to Exhibit M5:

1. [Not for publication]

2. [Not for publication]

3. [Not for publication]

4. [Not for publication]

5. [Not for publication]

Affidavit evidence of Geoff Gerring

88. Mr Gerring is the director of development, Blackwattle Bay Precinct. As director of development, Mr Gerring leads a multidisciplinary team within iNSW responsible for planning of the redevelopment of Blackwattle Bay Precinct. Prior to his current role, Mr Gerring was the development manager at UrbanGrowth NSW. Mr Gerring provides the evidence outlined below in relation to document 004 in Decision 105, which is a meeting minute of the Blackwattle Bay Interagency Working Group (IWG).

89. In September 2019, Cabinet endorsed the final business case for UrbanGrowth NSW to deliver the new Sydney Fish Markets as part of the redevelopment of the Blackwattle Bay Precinct. The Main Works Contract between INSW and Multiplex was entered into on 22 October 2020 and was amended by a deed of variation dated 5 February 2021. According to Mr Gerring, the IWG was put in place from February 2021 and comprised representatives from iNSW, Property NSW and Place Management NSW, all of which are NSW government agencies with responsibilities for redeveloping, managing and owning lands within the Blackwattle Bay Precinct as well as administering lease agreements between the government and SFM.

90. The terms of reference for the Blackwattle Bay IWG include a provision that deliberations of the working group are to be kept confidential to the participating members. According to Mr Gerring, because the Blackwattle Bay IWG is an inter-agency working group which discusses matters of commercial and legal significance to the NSW government, he proceeded on the basis that any discussions, as well as the meeting minutes produced, were confidential.

91. The information in dispute in Decision 105 concerns certain discussions of the Blackwattle Bay IWG. The information is contained in minutes of the meetings and action registers prepared following the meetings. Document 004 contains information about financial matters concerning the funding of the maintenance, operation and placemaking of the Blackwattle Bay Precinct.

92. [Not for publication]

93. [Not for publication]

94. Mr Gerring was not cross-examined on his evidence.

Affidavit evidence of Greg Lin

95. Mr Lin is the Project Director of the new Sydney Fish Market within Projects NSW, which is a division in iNSW. He has held this position since 2022. Mr Lin has affirmed two affidavits, one affirmed 28 March 2024 (there is a confidential and redacted version of this affidavit) and one affirmed 6 June 2024 (there is also a confidential and redacted version of this affidavit), which is in response to an affidavit from Michael Guilday. The evidence in his second affidavit is outlined later in these reasons.

96. As Project Director, he leads development of the new Sydney Fish Market. He is responsible for managing the AFL, the design and construct contract between Multiplex and iNSW, establishing budgets, cost reporting and forecasting to meet the iNSW financial, legal and projects requirements, reporting to the Steering Committee of the new SFM, which provides strategic oversight and guidance for the project, and project managing the new SFM development, which includes work allocation, promoting compliance with work health and safety obligations, delivering the new SFM development to quality, budget and schedule requirements and managing relationships with stakeholders of the new SFM development. There is a team of approximately 15 iNSW employees and consultants who report to him. Mr Lin provides the evidence outlined below.

97. iNSW was established in 2011 by the Infrastructure NSW Act 2011 (NSW) for the purpose of assisting in identifying and prioritising the delivery of critical public infrastructure in NSW. Its functions, which are prescribed in s 11, include overseeing and monitoring the delivery of major infrastructure projects and assessing the risk involved in planning, funding, delivering and maintaining infrastructure and the management of those risks.

98. SFM is the head tenant for the existing Sydney Fish Markets site and has signed an AFL with iNSW to be the head tenant of the new SFM site once it is completed. iNSW will transfer ownership of this site to another agency, which will enter into a lease with SFM. iNSW is also responsible for the disposal of the existing Sydney Fish Markets site, following rezoning, for mixed use development, including a new public domain and open space.

99. The information in dispute in Decision 106 was created by iNSW and Multiplex throughout the course of the development. The documents the subject of Decision 106 were distributed confidentially between iNSW and Multiplex on a document management and transfer system. This platform is not publicly assessable. They are documents issued pursuant to the Main Works Contract. They are characterised by reference to seven different categories. Mr Lin’s evidence about each of these categories is set out below. It should be noted, for completeness, that iNSW makes no claims in respect of two of the categories of documents, namely Category 1(c), relating to third party complaints, and Category 1(d), non-compliance notices, and no documents have been identified that respond to Category 1(i).

Category 1(a) documents - monthly progress reports

100. Documents 001 to 012 are monthly reports prepared by Multiplex for the PCG. According to Mr Lin, the PCG is comprised of iNSW and Multiplex staff responsible for the delivery of the new SFM Project. Multiplex is contractually required to prepare monthly PCG reports under the Main Works Contract. The monthly PCG reports are distributed confidentially to a limited number of Multiplex staff who work on the new SFM Project.

101. Extracts of the Main Works Contract are annexed to Mr Lin's affidavit. The relevant extracts which outline the obligation of Multiplex to prepare the monthly PCG reports are contained in cl 6 of the Main Works Contract. Clause 6, headed ‘evaluation and monitoring’, states that Multiplex must provide weekly progress reports before each weekly site meeting and monthly progress reports after the end of each month. Clause 24, headed ‘confidentiality and privacy’, provides that Multiplex must maintain all confidential information secret and confidential and must only disclose the information to those persons to whom disclosure is reasonably necessary for the purpose of the contract. The clause specifically excludes confidential information which is generally available to the public or which is required to be disclosed by law. The definition for confidential information is broad and is defined to mean the terms of the contract, all data and other documents in any form whatsoever in the possession or knowledge of a party which is disclosed to the other party and is identified at the time of such disclosure as being confidential.

434. iNSW contends that this category of documents necessarily includes a record of the matters of controversy between iNSW and Multiplex which the parties seek to resolve under the contractual provisions. iNSW contends that even though some of the matters have been resolved or there are no live issues in respect of those matters, there is still potential for dispute and prejudice for the reasons outlined by Mr Maher in his affidavit and in his oral evidence during the hearing. Those matters are set out above at [166]-[168].

435. Multiplex submits that the information which is the subject of the disputed documents is highly confidential and remains sensitive because, even if the issue is identified as being an issue that is not in dispute, Multiplex still has concerns about the release of the document. Mr Maher gave two examples of particular concerns. [Not for publication]

436. I am therefore satisfied, on the basis of the evidence of both Mr Maher and Mr Lin, that disclosure of the disputed documents in Category 1(j) could reasonably be expected to have the effect contended by iNSW and Multiplex. I am satisfied that the risks and concerns raised by Mr Lin and Mr Maher are based on real and substantial grounds. Given most of the issues referred to in the notice are live issues or have a potential to become live issues, I am of the view that this weighs strongly against disclosure. In this regard, I also take into account the personal interest that SFM would have in relation to getting access to this information.

437. I affirm the decision under review in relation to the category 1(j) documents.

Decision 109

442. The document in dispute (003) is a detailed cost report for the Blackwater Bay Precinct dated August 2023, known as the August 2023 New Report BWB. The document is an excel spreadsheet comprising worksheets for information relating to the new SFM Project as well as the broader Blackwattle Bay Precinct. It is 96 pages in length and includes a summary spreadsheet to which various spreadsheets are attached related to actual costings for the new SFM Project and for the Blackwattle Bay Precinct for the 2023 fiscal year. The attachments include spreadsheets with detailed line-item costings, a cost report for Blackwattle Bay for the financial year 2023-2024 and projections for the whole life of the project, a worksheet for specific costs and accruals of approximately 49 pages, forecasts for the new SFM Project and the Blackwattle Bay Precinct and a spreadsheet with detailed costings broken down for each month to August 2023 (23 pages).

443. This disputed document is one document within a list of seven documents which were identified by iNSW to respond to the request made by SFM for non-redacted copies of the most recent project financial budget, any information provided to iNSW relating to ongoing maintenance requirements and any dilapidation report prepared in relation to the existing Sydney Fish Markets. As noted, all documents, with the exception of the disputed document, have been released to SFM by iNSW.

444. iNSW submits the Tribunal should find on the basis of the evidence of Mr Lin, this document could reasonably be expected to prejudice the effective exercise by iNSW of its functions, being its functions of project managing the new SFM Project and engaging in commercial negotiations with stakeholders as well as its functions of overseeing and monitoring the delivery of major infrastructure projects more generally. It is also submitted that the information in this document would diminish the competitive commercial value of the information to NSW and prejudice its legitimacy business or commercial interests. It is further submitted that the Tribunal should assign significant weight to each of these matters as public interest considerations against disclosure.

445. Multiplex does not raise any issues in relation to this disputed document and SFM does not make any specific submissions in relation to this document, other than the general submission made that there is a strong public interest consideration in favour of the release of all information relating to new SFM Project.

446. iNSW relies on the evidence of Mr Lin. Mr Lin’s evidence in relation to this document is summarised above at [119] to [123]. In summary, he states that this report is a detailed cost report as at August 2023 which is updated by Mr Lin and his finance team on a monthly basis. The report is not publicly assessable and staff within the team specifically request access to obtain the information. He reports to the Steering Committee and uses the cost report to provide updates on the construction progress. According to Mr Lin, and this is apparent from review of the document as described more generally above, the cost report document contains a precise breakdown of the funds that have been spent by iNSW on the new SFM Project, including the categories in which funds have been expended. It also includes details of amount in the budget for particular costs and the contingencies.

447. Mr Lin is concerned that if this cost document report is disclosed it would be used by stakeholders dealing with iNSW in the future, such as contractors and subcontractors, to allow them to leverage the information to negotiate financial concessions from iNSW. This would be against the public interests. Mr Lin also states that this report should be kept confidential from Multiplex because it contains detailed information concerning the quantum of the uncommitted spend. He has concerns about Multiplex seeking to leverage this financial information. Notably, he is concerned the document reveals the methodology iNSW adopts in projecting its overall budgets for projects and further approvals that are required for the increase of the budget. The cost report for the month is confidential and includes the budget forecast for the future.

448. I accept Mr Lin’s evidence about the detail of the August 2023 New Report BWB, which is consistent with my review of the detail of the report. I also accept Mr Lin’s evidence about his concern about the disclosure of the information. I am satisfied, based on the evidence of Mr Lin and my review of the report, that it contains very detailed financial information about costs for the project such that if this information were to be disclosed, third parties, including Multiplex, SFM and subcontractors and suppliers, would gain a commercial advantage in negotiations for future contracts and arrangements. I accept the proposition that iNSW is operating, as in this regard, in a commercial sphere attempting to negotiate the best prices and arrangements with third parties on behalf of government.

449. A party undertaking negotiations must be able to do so without disclosing or having to disclose to that party information that may be the subject of about critical confidential information. Details about uncommitted funds and the price that iNSW may have available and be prepared to pay to complete a project is such information. This is an essential part of commercial negotiation and, even though iNSW is a government instrumentality, it is undertaking a commercial enterprise on behalf of the state. In my view, the disclosure of this document could reasonably be expected to prejudice iNSW in the exercise of its functions for the purposes of cl 1(f), could reasonably be expected to prejudice the legitimate business and commercial interests of iNSW in negotiating future arrangements on behalf of the State and could reasonably be expected to diminish the competitive commercial value of the information contained in the report to iNSW. I am satisfied that the risks and concerns raised by Mr Lin are more than a mere possibility, risk or chance and they are based on real and substantial grounds.

450. Against this, there is generally a public interest in disclosure but in this case the information is so detailed and granular that it is questionable there is any meaningful public interest in its disclosure. The general public would be unlikely to find this information informative but third parties, such as Multiplex, possibly SFM and contractors and suppliers, especially those with a construction background, may find the information extremely useful in future negotiations iNSW. I also find that this is a personal factor that weighs against rather than in favour of disclosure given the ongoing commercial interests between iNSW, SFM and Multiplex.

451. I therefore find that, in balancing these various public interest considerations, there is an overriding public interest against disclosure in this case. I affirm the decision under review.

Conclusions and orders

452. Having reviewed the evidence and documents carefully, I make the following orders in respect of each decision under review:

1. Decision 105 is varied to release that part of the redacted information in document 004 adjacent to Item 5.

2. In respect of Decision 106:

1. iNSW’s decision is affirmed insofar as it concerns documents 013 to 042, 085, 104 to 106 and 107 to 124;

2. iNSW’s decision is varied to:

1. wholly release documents 055A and 062A; and

2. withhold those parts of the documents responsive to Categories 1(e) (being documents 043 to 084) and 1(g) (being documents 086 to 102) which were redacted in accordance with the Open Bundle filed by iNSW on 1 August 2024 in these proceedings (Exhibit R2) but otherwise to release the non-redacted parts of those documents to SFM in accordance with Exhibit R2.

3. insofar as it concerns documents 001 to 012:

1. pursuant to s 63(3)(c) of the Administrative Decisions Review Act 1997 (ADR Act), set aside the decision in relation to Section 6 in each of the documents and substitute a decision that iNSW release those sections;

2. pursuant to s 63(3)(d) of the ADR Act, set aside the decision in relation to Section 5 in each of the documents and remit that part of the decision to iNSW for reconsideration in accordance with the recommendations made in [361] of these reasons.

3. otherwise affirm the decision to withhold the balance of documents 001 to 012.

3. Decision 109 is affirmed.

4. These reasons for decision are not to be published, except to the parties and Multiplex, until 5pm 11 June 2025.

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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: 12 June 2025