Webb v Port Stephens Council

Case [2019] NSWCATAD 47

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Webb v Port Stephens Council [2019] NSWCATAD 47
Hearing dates: 6 December 2018
Date of orders: 27 March 2019
Decision date: 27 March 2019
Jurisdiction:Administrative and Equal Opportunity Division
Before: R.L. Hamilton SC, Senior Member
Decision:

(1)   The order made in the hearing that part of the hearing be conducted in private is confirmed (s 49(2) CAT Act).
(2)   Pursuant to s 64 CAT Act it is ordered that:
(a)   the publication of evidence given before the Tribunal in private, and of matters contained in confidential documents received in evidence by the Tribunal, and of the transcript of the private hearing; and
(b)   the disclosure to applicants in the proceedings of confidential evidence given before the Tribunal, and of the contents of a confidential document received in evidence by the Tribunal, and of the transcript of the private hearing
be prohibited.
(3)   In Mr McEwan’s matter (File No. 2016/378193) the decision of the respondent Council is set aside and the documents are remitted back to the respondent for further consideration and redaction in accordance with these reasons
(4)   In Ms Webb’s matter (File No.2016/378165) I
(a)   the decisions of the respondent Council in relation to those documents to which access has been refused, and
(b)   the decision to refuse to deal with certain documents
are set aside and those documents are remitted back to the respondent for further consideration and redaction in accordance with these reasons.
(5)   In Ms Webb’s matter (File No. 2016/378165) the decisions of the agency in relation to the other documents to which partial access has been granted is affirmed.
(6)   The respondent is directed to write and advise the persons who objected to the release of the information in the documents about this decision, and if aggrieved of their rights to have the decision reviewed.

Catchwords: ADMINISTRATIVE LAW- freedom of information- government information public access-public interest considerations-open access information s6 Government Information (Public Access) Act 2009 (NSW)
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil & Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Government Information (Public Access) Regulation 2018 (NSW)
Health Records and Information Privacy Act 2002(NSW)
Privacy and Personal Information Protection Act 1998(NSW)
Cases Cited: AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90
Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19
Ermel v Department of Finance and Services [2013] NSWADT 183
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Leech v Sydney Water Corporation [2010] NSW ADT 298
Turnbull v Strange [2018] NSWCA 157
Wiskich v Composite Materials Australia Pty Ltd [2016] NSWCATAP 221
Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139
Texts Cited: Nil
Category:Principal judgment
Parties: T Webb & P McEwan (Applicants)
Port Stephens Council (Respondent)
Representation: Solicitors:
T Webb & P McEwan (Self Represented)(Applicants)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2016/378193 & 2016/378165
Publication restriction: The publication of evidence given before the Tribunal…

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AGLC
Webb v Port Stephens Council [2019] NSWCATAD 47
Case
[2019] NSWCATAD 47
Decision Date

CaseChat Overview and Summary

The matter of Webb v Port Stephens Council involved an application for internal review of decisions made by the respondent council under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The applicants sought access to certain documents held by the council which they claimed contained information of public importance, and which had been withheld or partially withheld by the council. The council argued that the disclosure of these documents would contravene certain exemptions under the GIPA Act.

The central legal issues before the court were whether the council's decisions to withhold or partially withhold certain documents from the applicants were lawful under the GIPA Act. Specifically, the court needed to determine whether the exemptions relied upon by the council were correctly applied, and whether the public interest in disclosure of the documents outweighed the public interest in non-disclosure.

The court found that the council had not adequately considered the public interest in disclosure of the documents, and that the exemptions relied upon by the council were not applicable in the circumstances of this case. The court held that the council's decisions to withhold or partially withhold the documents were unlawful, and that the documents should be released to the applicants subject to redaction of any exempt material. The court also found that the council's decision to refuse to deal with certain documents was unlawful, and that those documents should also be released subject to redaction. However, the court upheld the council's decision to grant partial access to other documents, finding that the exemptions relied upon by the council were correctly applied in those cases.

The court made several orders in relation to the release of the documents, including an order prohibiting the publication of evidence given before the tribunal in private, and of matters contained in confidential documents received in evidence by the tribunal, and of the transcript of the private hearing. The court also set aside certain decisions of the council in relation to the release of the documents, and directed the council to write and advise the persons who objected to the release of the information in the documents about this decision, and if aggrieved of their rights to have the decision reviewed.

Orders

Orders of the court

(1) The order made in the hearing that part of the hearing be conducted in private is confirmed (s 49(2) CAT Act).

(2) Pursuant to s 64 CAT Act it is ordered that:

(a) the publication of evidence given before the Tribunal in private, and of matters contained in confidential documents received in evidence by the Tribunal, and of the transcript of the private hearing; and

(b) the disclosure to applicants in the proceedings of confidential evidence given before the Tribunal, and of the contents of a confidential document received in evidence by the Tribunal, and of the transcript of the private hearing

be prohibited.

(3) In Mr McEwan’s matter (File No. 2016/378193) the decision of the respondent Council is set aside and the documents are remitted back to the respondent for further consideration and redaction in accordance with these reasons

(4) In Ms Webb’s matter (File No.2016/378165) I

(a) the decisions of the respondent Council in relation to those documents to which access has been refused, and

(b) the decision to refuse to deal with certain documents

are set aside and those documents are remitted back to the respondent for further consideration and redaction in accordance with these reasons.

(5) In Ms Webb’s matter (File No. 2016/378165) the decisions of the agency in relation to the other documents to which partial access has been granted is affirmed.

(6) The respondent is directed to write and advise the persons who objected to the release of the information in the documents about this decision, and if aggrieved of their rights to have the decision reviewed.

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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