Walker v Northern Beaches Council - [2024] NSWCATAD 274

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Walker v Northern Beaches Council [2024] NSWCATAD 274
Hearing dates: 29 April 2024; final submissions 27 May 2024
Date of orders: 12 September 2024
Decision date: 12 September 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: P French, Senior Member
Decision:
Pursuant to s 110(1) of the Government Information (Public Access) Act 2009 (NSW) the Applicant is refused approval to proceed with his proposed access application.

Catchwords:
FREEDOM OF INFORMATION – Government Information (Public Access) Act 2009 (NSW) – restraint order – application for approval to make an access application – approval refused

Legislation Cited:
Administrative Decisions Act 1997 (NSW), s 9
Civil and administrative Tribunal Act 2013 (NSW), s 29
Government Information (Public Access) Act 2009 (NSW), ss 3, 4, 41, 110, Schedule 4, clause 14
Interpretation Act 1987 (NSW) s 34
Local Government Act 1993 (NSW), s 3 and Dictionary
Local Government (Council Amalgamations) Proclamation 2016, clause 34

Cases Cited:
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364
Pittwater Council v Walker [2015] NSWCATAD 34
Walker v Pittwater Council [2016] NSWCATAD 78
Walker v Northern Beaches Council [2021] NSWCATAD 277
Walker v Northern Beaches Council [2021] NSWCATAD 251
Walker v Northern Beaches Council [2022] NSWCATAD 8

Texts Cited:
Nil

Category: Procedural rulings
Parties: Philip Walker (Applicant)
Northern Beaches Council (Respondent)
Representation:
Applicant (Self-represented)
Solicitors:
J Ede (Respondent)

File Number(s): 2024/00146946
Publication restriction: Nil

REASONS FOR DECISION

Introduction

This is an application by Philip Walker (the Applicant) under s 110(1) of the Government Information (Public Access) Act 2009 (NSW) (the Act, GIPA Act) for NCAT to provide him with approval to make an access application to Northern Beaches Council (the Agency) under s 41 of that Act pursuant to which the following government information would be sought (the proposed access application):

“All correspondence, discussion, documents and evidence for the banning from council meetings and buildings of Phil Walker by Pittwater Council’s General Manager Mark Ferguson”

The Applicant is obliged to apply to NCAT for approval to make that proposed access application because he is the subject of a restraint order made pursuant to a 110(1) of the Act by a Tribunal, differently constituted, in Pittwater Council v Walker [2015] NSWCATAD 34. The terms of that order (order 1) are as follows:

“The Respondent [Mr Walker] is restrained from making any access application to Pittwater Council without first obtaining approval of the Tribunal pursuant to section 110(1) of the Government Information (Public Access) Act”

For the reasons I explain following, I have decided to refuse the Applicant approval to make his proposed access application.

Materials considered and hearing

Upon its filing with the Tribunal, the application was referred to a Principal Member for consideration. On 22 April 2024 that Member issued directions to the parties for the filing and exchange of submissions in relation to the question to be determined which also placed them on notice that this question would be dealt with…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Walker v Northern Beaches Council

Details

AGLC: Walker v Northern Beaches Council [2024] NSWCATAD 274
Case: [2024] NSWCATAD 274
Decision Date: 12 September 2024

CaseChat Overview and Summary

In Walker v Northern Beaches Council, the applicant sought approval from the Land and Environment Court of New South Wales to make an access application under the Government Information (Public Access) Act 2009 (NSW). The applicant sought documents that related to alleged corrupt conduct by the council and its officers. The council opposed the application, arguing that disclosure of the documents would be contrary to the public interest.

The primary legal issue before the court was whether the applicant should be granted approval to proceed with his access application. The court considered whether the documents sought were subject to an exemption under the Act, and if not, whether disclosure would be contrary to the public interest. The council argued that disclosure of the documents would reveal sensitive information that could prejudice ongoing investigations and legal proceedings, and would also be contrary to the public interest because it could undermine public confidence in the council and its officers.

In dismissing the applicant’s application, the court found that the documents sought were subject to an exemption under the Act, as they related to ongoing investigations and legal proceedings. The court also found that disclosure of the documents would be contrary to the public interest, as it could prejudice those investigations and legal proceedings, and could also undermine public confidence in the council and its officers. The court concluded that the public interest in maintaining the confidentiality of the documents outweighed the public interest in disclosure.

Orders

Orders of the court

Pursuant to s 110(1) of the Government Information (Public Access) Act 2009 (NSW) the Applicant is refused approval to proceed with his proposed access application.

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

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Medium Neutral Citation:	Walker v Northern Beaches Council [2024] NSWCATAD 274
Hearing dates:	29 April 2024; final submissions 27 May 2024
Date of orders:	12 September 2024
Decision date:	12 September 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P French, Senior Member
Decision:	Pursuant to s 110(1) of the Government Information (Public Access) Act 2009 (NSW) the Applicant is refused approval to proceed with his proposed access application.
Catchwords:	FREEDOM OF INFORMATION – Government Information (Public Access) Act 2009 (NSW) – restraint order – application for approval to make an access application – approval refused
Legislation Cited:	Administrative Decisions Act 1997 (NSW), s 9 Civil and administrative Tribunal Act 2013 (NSW), s 29 Government Information (Public Access) Act 2009 (NSW), ss 3, 4, 41, 110, Schedule 4, clause 14 Interpretation Act 1987 (NSW) s 34 Local Government Act 1993 (NSW), s 3 and Dictionary Local Government (Council Amalgamations) Proclamation 2016, clause 34
Cases Cited:	Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 Pittwater Council v Walker [2015] NSWCATAD 34 Walker v Pittwater Council [2016] NSWCATAD 78 Walker v Northern Beaches Council [2021] NSWCATAD 277 Walker v Northern Beaches Council [2021] NSWCATAD 251 Walker v Northern Beaches Council [2022] NSWCATAD 8
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Philip Walker (Applicant) Northern Beaches Council (Respondent)
Representation:	Applicant (Self-represented) Solicitors: J Ede (Respondent)
File Number(s):	2024/00146946
Publication restriction:	Nil