Gardner v Transport for NSW [2023] NSWCATAD 56

Gardner v Transport for NSW [2023] NSWCATAD 56

The Operating Instructions were protected by copyright, the respondent did not own the copyright, and the copyright owner had not authorised or licensed the respondent to provide a copy to the applicant. If the respondent copied the document for the applicant, its purpose would be to fulfil its obligations under the GIPA Act, not a fair dealing purpose or a judicial proceedings/professional advice purpose under the Copyright Act 1968 (Cth). Providing a copy would therefore involve copyright infringement and would prejudice the copyright owner's legitimate business and commercial interests. The public interest considerations against disclosure in the requested form outweighed those in...

Jurisdiction
Australia
Judgment Date
14 March 2023
Procedural Posture
Administrative Review of a Decision Under the Government Information (public Access) Act 2009 (nsw) / Decision on Application for Administrative Review in the Civil and Administrative Tribunal of New South Wales
Outcome
The decision of the respondent dated 27 September 2022 is affirmed.
Legal Topics
['gipa Access Application' 'public Interest Test' 'forms of Access' 'view Only Access' 'copyright Infringement' 'fair Dealing Exceptions' 'business and Commercial Interests']
['administrative Law' 'government Information' 'copyright'] ['gipa Access Application' 'public Interest Test' 'forms of Access' 'view Only Access' 'copyright Infringement' 'fair Dealing Exceptions' 'business and Commercial Interests']

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Procedural Posture

Administrative Review of a Decision Under the Government Information (public Access) Act 2009 (nsw) / Decision on Application for Administrative Review in the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ['Whether Transport for NSW was required to provide the applicant with a copy of the Redflex Standard Operating Instructions for Mobile Speed Camera Operators rather than view-only access.' 'Whether providing access in the form requested by the applicant would involve an infringement of copyright under s 72(2)(c) of the Government Information (Public Access) Act 2009 (NSW).' "Whether the fair dealing or judicial proceedings/professional advice exceptions in the Copyright Act 1968 (Cth) applied by reference to the applicant's intended use of the information." 'Whether there was an overriding public interest against disclosure of the disputed information in the way requested by the applicant.']

Ratio Decidendi

The Operating Instructions were protected by copyright, the respondent did not own the copyright, and the copyright owner had not authorised or licensed the respondent to provide a copy to the applicant. If the respondent copied the document for the applicant, its purpose would be to fulfil its obligations under the GIPA Act, not a fair dealing purpose or a judicial proceedings/professional advice purpose under the Copyright Act 1968 (Cth). Providing a copy would therefore involve copyright infringement and would prejudice the copyright owner's legitimate business and commercial interests. The public interest considerations against disclosure in the requested form outweighed those in...

Court Disposition

The decision of the respondent dated 27 September 2022 is affirmed.

Orders

  • ['Pursuant to s 63(3)(a) of the Administrative Decisions Review Act 1997 (NSW), the decision of the respondent dated 27 September 2022 is affirmed.']