McEwan v Port Stephens Council [2018] NSWCATAP 211

McEwan v Port Stephens Council [2018] NSWCATAP 211

The Tribunal erred in law by failing to adequately address the implications of the open access status of the information, failing to provide adequate reasons regarding the risk of harm/harassment (cl 3(f)), and failing to sufficiently consider the nature and significance of health information in the weighing exercise. These errors affected the lawfulness of the refusal of access to information under the GIPA Act, warranting the set aside of the decision and remitting the matter for redetermination.

Parties
Appellant: Paul McEwan; Respondent: Port Stephens Council
Jurisdiction
Australia
Judgment Date
14 September 2018
Procedural Posture
Appeal / Appeal Against Decision of the Tribunal (administrative & Equal Opportunity Division, [2017] NSWCATAD 269) Affirming Refusal of Access to Information Under the GIPA Act
Outcome
Appeal allowed; Tribunal decision set aside; remitted for redetermination by differently constituted Tribunal.
Legal Topics
Government Information (public Access), Public Interest Considerations, Open Access Information, Adequacy of Reasons, Procedural Fairness, Access to Objections to Development Application
Administrative Law Government Information (public Access) Public Interest Considerations Open Access Information Adequacy of Reasons Procedural Fairness Access to Objections to Development Application

Case Brief

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Parties

Paul McEwan

Appellant

Port Stephens Council

Respondent

Procedural Posture

Appeal / Appeal Against Decision of the Tribunal (administrative & Equal Opportunity Division, [2017] NSWCATAD 269) Affirming Refusal of Access to Information Under the GIPA Act

Legal Issues

  1. 1 Whether the Tribunal erred in law in failing to properly give effect to the open access information provisions of the GIPA Act
  2. 2 Whether the Tribunal provided adequate reasons for findings that public interest considerations against disclosure outweighed those in favour
  3. 3 Whether the Tribunal erred in its treatment of evidence supporting public interest considerations against disclosure, particularly risk of harm, harassment or intimidation (cl 3(f))

Ratio Decidendi

The Tribunal erred in law by failing to adequately address the implications of the open access status of the information, failing to provide adequate reasons regarding the risk of harm/harassment (cl 3(f)), and failing to sufficiently consider the nature and significance of health information in the weighing exercise. These errors affected the lawfulness of the refusal of access to information under the GIPA Act, warranting the set aside of the decision and remitting the matter for redetermination.

Court Disposition

Appeal allowed; Tribunal decision set aside; remitted for redetermination by differently constituted Tribunal.

Orders

  • The appeal is allowed.
  • The decision of the Tribunal to affirm the decision under review made on 20 March 2017 is set aside.