FHG v Cumberland City Council; Cumberland City Council v FHG [2023] NSWCATAP 91

FHG v Cumberland City Council; Cumberland City Council v FHG [2023] NSWCATAP 91

The Appeal Panel held that a s 29(1A) certificate was not the exclusive means of establishing s 29 protection, and mere speculation does not require the Council to prove good faith positively. The redacted version of document 1 did not contain information identifying a report maker or information contained in a report to which s 29 applies, and should have been disclosed. For document 6, the Tribunal was not required to direct creation of a typewritten version as there was no specific request. For document 18, although there was a procedural misunderstanding about evidence status, no practical injustice resulted and the original Tribunal orders stand.

Jurisdiction
Australia
Judgment Date
30 March 2023
Procedural Posture
Administrative Law Appeal / Appeal From Civil and Administrative Tribunal, Administrative and Equal Opportunity Division
Outcome
Appeals allowed in part; orders varied; otherwise dismissed.
Legal Topics
['government Information (public Access) Act 2009 (nsw)' 'children and Young Persons (care and Protection) Act 1998 (nsw)' 'procedural Fairness' 'jurisdiction of Tribunal' 'prohibition on Disclosure' 'statutory Interpretation']
['administrative Law'] ['government Information (public Access) Act 2009 (nsw)' 'children and Young Persons (care and Protection) Act 1998 (nsw)' 'procedural Fairness' 'jurisdiction of Tribunal' 'prohibition on Disclosure' 'statutory Interpretation']

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Procedural Posture

Administrative Law Appeal / Appeal From Civil and Administrative Tribunal, Administrative and Equal Opportunity Division

Legal Issues

  1. 1 ['Whether there is a requirement for positive proof that a report was made in good faith under s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)' 'Whether the Tribunal can be satisfied that a document is a report to which s 29 applies, or includes information contained in such a report, without a s 29(1A) certificate' 'Whether the Tribunal has jurisdiction to order an agency to create a new record under s 75 of the GIPA Act' 'Whether procedural fairness was denied to the Council regarding document 18']

Ratio Decidendi

The Appeal Panel held that a s 29(1A) certificate was not the exclusive means of establishing s 29 protection, and mere speculation does not require the Council to prove good faith positively. The redacted version of document 1 did not contain information identifying a report maker or information contained in a report to which s 29 applies, and should have been disclosed. For document 6, the Tribunal was not required to direct creation of a typewritten version as there was no specific request. For document 18, although there was a procedural misunderstanding about evidence status, no practical injustice resulted and the original Tribunal orders stand.

Court Disposition

Appeals allowed in part; orders varied; otherwise dismissed.

Orders

  • ['Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication or disclosure of the name of the appellant in proceedings 2022/00088146, referred to as FHG, is prohibited.' 'The time for filing the appeal in proceedings 2022/00088146 be extended to 28 March 2022.' 'The time for...