Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Walker v Northern Beaches Council [2022] NSWCATAD 8 Hearing dates: 13 December 2021 Date of orders: 11 January 2022 Decision date: 11 January 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: P French, Senior Member Decision: The application is dismissed.
Catchwords: ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 – restraint order preventing unmeritorious access applications - application for approval to make an access application – whether there is jurisdiction to deal with the application – where notice of the application was not given to the Information Commissioner prior to the application being made – whether such notice is a jurisdictional fact – whether proposed access application is misconceived – whether the apparatus or delivery system of a decommissioned web site is government information – whether proposed access application is for a wrongful purpose – where the objective of the access application is to require the agency to make a policy decision concerning the re-enlivening of a decommissioned web site – whether the proposed access application is lacking in substance – where there are no reasonable grounds to believe the information sought by the proposed access application exists – where web site was built by a third party under license – whether an order should be made prohibiting the applicant from making any further application for approval to make an access application
Legislation Cited: Administrative Decisions Act 1997 (NSW)
Building and Construction Industry Security of Payment Act 1999 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Home Building Act 1989 (NSW)
Interpretation Act 1987 (NSW)
Local Government Act 1993 (NSW)
Local Government (Council Amalgamations) Proclamation 2016
Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142
Baserite Constructions Pty Lyd v Tanios [2020] NSWCATAP 77
BDK v Department of Education and Communities [2015] NSWCATAP 129
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Lam v Steve Jardin Motors Pty Ltd [2016] NSWCATAP 186
Lo v Chief Commissioner of State Revenue (2013) 87 ALJR 618
Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237
Pittwater Council v Walker [2015] NSWCATAD 34
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
S & G Homes Pty Ltd t/as Pavillion Homes v Owen [2015] NSWCATAP 190
Walker v Northern Beaches Council [2016] NSWCATAD 161
Walker v Northern Beaches Council [2021] NSWCATAD 277
Walker v Pittwater Council [2015] NSWCATAD 198
Walker v Pittwater Council [2015] NSWCATAD 222
Walker v Pittwater Council [2016] NSWCATAD 78
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Texts Cited: Agreement in Principle Speech, Government Information (Public Access Bill 2009, Government Information (Information Commissioner) Bill 2009, Government Information, (Public Access) (Consequential…
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- Case
- [2022] NSWCATAD 8
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues. Firstly, whether the failure to give notice to the Information Commissioner prior to making the application was a jurisdictional fact that deprived the court of the power to hear the matter. Secondly, whether the proposed access application was misconceived, lacking in substance, or for a wrongful purpose. This included considering whether the apparatus or delivery system of a decommissioned website constituted government information, and if the objective of the access application was to require the agency to make a policy decision. Lastly, the court had to decide whether an order should be made prohibiting the applicant from making any further applications for approval to make an access application.
The court held that the failure to give notice to the Information Commissioner was a jurisdictional fact and therefore deprived the court of the power to hear the matter. The court also found that the proposed access application was lacking in substance and for a wrongful purpose, as there were no reasonable grounds to believe the information sought existed, and the objective of the access application was to require the agency to make a policy decision concerning the re-enlivening of a decommissioned website. The court further found that the apparatus or delivery system of the decommissioned website did not constitute government information. Based on these findings, the court dismissed the application and made an order prohibiting the applicant from making any further applications for approval to make an access application.
The court's decision was that the application was dismissed, and an order was made prohibiting the applicant from making any further applications for approval to make an access application. The court found that the failure to give notice to the Information Commissioner was a jurisdictional fact and that the proposed access application was lacking in substance and for a wrongful purpose. The court also found that the apparatus or delivery system of the decommissioned website did not constitute government information. This decision highlights the importance of following the correct procedures when making an access application under the Government Information (Public Access) Act 2009 and the need for applicants to ensure that their applications are not lacking in substance or for a wrongful purpose.
Orders
Orders of the court
The application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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