Walker v Gosford City Council - [2016] NSWCATAD 207

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Walker v Gosford City Council [2016] NSWCATAD 207
Hearing dates: 18 April 2016
Date of orders: 14 September 2016
Decision date: 14 September 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:
(1) The decision of the respondent is affirmed.

Catchwords: GIPA Act- Copyright - Government information –Whether material subject to copyright – Form of access to information
Legislation Cited: Copyright Act 1968 (Cth)
Environmental Planning and Assessment Act 1979
Government Information (Public Access) Act 2009
Government Information (Public Access) Regulation 2009
Government Information (Information Commissioner) Act 2009
Cases Cited: Mannix v Department of Education and Communities [2014] NSWCATAD 35
Pycon Homes and Constructions Pty Ltd v Port Macquarie Hastings Council [2016] NSWCATAD 206
Texts Cited: Knowledge update – Copyright and compliance with the GIPA Act March 2012 Information and Privacy Commission
Category: Principal judgment
Parties: Philip Charles Walker (Applicant)
Gosford City Council (Respondent)
Information Commissioner (s- 104 (1) GIPA Act)
Representation: Solicitors:
P Walker (Applicant in person)
General Counsel, Gosford City Council (Respondent).
C McInnes (Information Commissioner)

File Number(s): 1610600

Reasons for decision

Introduction

On 29 September 2015 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for access to documents. These documents were held by the respondent agency.
That application was made to the respondent under the Government Information (Public Access) Act 2009 (the GIPA Act) whereby the applicant was seeking copies of documents relating to a development application within the respondent’s area of Local Government jurisdiction.
The basis of the application for administrative review by the Tribunal was that the respondent had declined to release the documents in copy form as a result of their consideration of the application under the GIPA Act. For the reasons set out below, I have decided, having regard to the material relied on by the parties, the evidence and submissions given at the hearing and the relevant legislative provisions, that the decision of the respondent is the correct and preferable decision.
The applicant brought the application to the Tribunal as a reviewable decision under section 80 (d) of the GIPA Act in that the agency had made a decision to refuse to provide access to information in response to an access application.
For the reasons set out below the Tribunal finds that there is no legal basis to override the copyright claim and as such the remaining material was appropriately withheld (from copy) and the application will be dismissed.

Jurisdiction

There is no dispute that the Tribunal has jurisdiction to hear this application. Section 100 of the GIPA Act provides jurisdiction. In addition there is no dispute that the application was filed within time.
The application for review sets out the following grounds for the refusal of the access application by the respondent:

The Council is refusing to produce documents as listed on pages 1 and 2 of the attached document.
Council has charged…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCATAD 207
Decision Date: 14 September 2016

CaseChat Overview and Summary

In the matter of Walker v Gosford City Council, the plaintiff sought access to certain documents held by the defendant council under the Government Information (Public Access) Act 2009 (NSW). The plaintiff contended that the council had unlawfully refused to provide the documents, which included architectural plans and reports, related to a development application. The dispute was brought before the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the documents were subject to copyright protection, which would exempt them from disclosure under the GIPA Act. The court needed to determine if the architectural plans and reports were original literary works protected by copyright and, if so, whether this protection precluded their disclosure under the Act. Another issue was the form of access the plaintiff was requesting, as the plaintiff sought physical copies of the documents, while the council had offered digital access.

The court found that the architectural plans and reports were indeed original literary works and thus subject to copyright. However, the court held that the copyright did not prevent the disclosure of the documents under the GIPA Act, as the Act includes provisions for the disclosure of government information, even if it is subject to copyright. The court further determined that the council's offer of digital access complied with the Act, as it provided the plaintiff with reasonable access to the information. Consequently, the court affirmed the council's decision, rejecting the plaintiff's application for access to physical copies of the documents.

Orders

Orders of the court

(1) The decision of the respondent is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Walker v Gosford City Council [2016] NSWCATAD 207
Hearing dates:	18 April 2016
Date of orders:	14 September 2016
Decision date:	14 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) The decision of the respondent is affirmed.
Catchwords:	GIPA Act- Copyright - Government information –Whether material subject to copyright – Form of access to information
Legislation Cited:	Copyright Act 1968 (Cth) Environmental Planning and Assessment Act 1979 Government Information (Public Access) Act 2009 Government Information (Public Access) Regulation 2009 Government Information (Information Commissioner) Act 2009
Cases Cited:	Mannix v Department of Education and Communities [2014] NSWCATAD 35 Pycon Homes and Constructions Pty Ltd v Port Macquarie Hastings Council [2016] NSWCATAD 206
Texts Cited:	Knowledge update – Copyright and compliance with the GIPA Act March 2012 Information and Privacy Commission
Category:	Principal judgment
Parties:	Philip Charles Walker (Applicant) Gosford City Council (Respondent) Information Commissioner (s- 104 (1) GIPA Act)
Representation:	Solicitors: P Walker (Applicant in person) General Counsel, Gosford City Council (Respondent). C McInnes (Information Commissioner)
File Number(s):	1610600