Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 Hearing dates: 5, 30 June 2020 Date of orders: 02 September 2020 Decision date: 02 September 2020 Jurisdiction: Appeal Panel Before: Armstrong J, President A Britton, Principal Member Decision: In respect of AP20/7117: (1) Leave is refused to appeal on grounds other than a question of law. (2) The appeal is allowed in part. (3) The balance of the appeal is dismissed. In respect of AP20/22787: (4) The time for filing of the notice of appeal lodged by Forbidden Foods is extended to 21 May 2020. (5) Rice Growers Ltd t/as SunRice is joined as a party to the appeal proceedings AP20/22787 under s 44(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). (6) The appeal is allowed. In respect of AP20/7117 and AP20/22787: (7) Orders 1(a) and 2 made by the Tribunal on 16 January 2020 are affirmed. (8) Order 1(b) made by the Tribunal on 16 January 2020 in respect of Documents 25 and 26 is affirmed. (The Appeal Panel notes that, by consent on 10 July 2020, Order 1(b) of the decision made by the Tribunal on 16 January 2020 in respect of Document 27 was affirmed.) (9) Order 1(b) made by the Tribunal on 16 January 2020 in respect of Documents 11, 12, 13, 14 and 15 (the Independent Verification Reports) and Documents 2, 4, 6, 8 and 10 (the Reporting Letters) is set aside, and that part of the Tribunal's decision is remitted for reconsideration by the Tribunal as originally constituted, without further evidence, after: (a) Determining whether cl 1(d) and/or cl 1(f) of the Table to s 14 of the GIPA Act, apply to some or all of the information contained in the Independent Verification Reports having regard to the submissions made by the Board and SunRice in the proceedings below (referred to as the "subject submission" at [164] in the Appeal Panel's reasons) together with the findings not set aside on appeal.. (b) If the answer to (a) is yes, determining what weight to attribute to the public interest considerations against disclosure in cl 1(d) and/or cl 1(f). (c) In relation to the "material on market share in specific markets" (as variously described by the Tribunal in [172(1)], [172 (2)], [172](3), [172(4)] and [172(5)]) in the Reporting letters (the Redacted Market Information), determining what weight to attribute to the public interest considerations against disclosure in cl 4(c) and/or cl 4(d) of the Table to s 14 of the Government Information (Public Access) Act 2019. (d) Using as a basis the annexure to the submissions prepared by SunRice and filed in the appeal proceedings on 23 April 2020, identify any information in the Reporting Letters that is the same as, or similar to, the Redacted Market Information. (e) In relation to the information identified in (d) above, attributing weight to the public interest considerations in cl 4(c) and/or cl 4(d). (f) Using as a basis the Note to Appeal Panel re Ground 8 filed by the Board in the appeal on 3 July 2020, identifying the information in the Independent Verification Reports that is the same as, or similar to, the Redacted Market Information. (g) In relation to the information identified in (f) above, attributing weight to the public interest considerations in cl 4(c) and/or cl 4(d) in relation to that information. (h) Taking into account (a), (b), (c), (d), (e ), (f) and (g) above together with the findings made by the Tribunal not disturbed on appeal, apply s 13 of the Government Information (Public Access) Act 2019. (10) The Registrar is requested to give to the Tribunal the annexure to the submissions prepared by SunRice and filed in the appeal proceedings on 23 April 2020 and the Note to Appeal Panel about Ground 8 filed by the Board in the appeal on 3 July 2020. Catchwords: APPEALS – government information – access application – appeals from decision that government information be disclosed – public interest considerations – whether public interest considerations applied inconsistently – whether Tribunal misapplied s 13 of the Government Information (Public Access) Act 2009 PROCEDURE – standing of third party to bring an appeal – whether "party" in proceedings below –whether "intervenor" in proceedings below – meaning of "party" in s 80(1) of Civil and Administrative Tribunal Act 2013 PROCEDURE – parties on appeal – joinder – principles as to joinder of parties – application of s 44(1) of Civil and Administrative Tribunal Act 2013 – whether joinder necessary or proper – whether interests of applicant affected by orders made below – other factors considered – application for joinder granted PROCEDURE – right to appear and be heard – whether third party has statutory entitlement to appear and be heard under s 104(3) of the Government Information (Public Access) Act 2009 – STATUTORY CONSTRUCTION – whether s 104(3) applies to internal appeals PROCEDURE – role of Information Commissioner under s 104(1) of Government Information (Public Access) Act 2009 – whether limited to principles of statutory construction, applicable law, policies and guidelines Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Criminal Appeal Act 1912 (NSW) Government Information (Information Commissioner) Act 2009 (NSW) Government Information (Public Access) Act 2009 (NSW) Interpretation Act 1987 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Rice Marketing Act 1983 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2008] HCA 41 Anderson v Tweed Shire Council [2017] NSWCATAD 61 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Attorney General for New South Wales v Melco Resorts & Entertainment Ltd [2020] NSWCA 40 Attorney-General v Prince Ernest Augustus of Hanover (1957) AC 436 Auld v Independent Liquor and Gaming Authority [2017] NSWCATAD 160 Black v Hunter New England Local Health District [2011] NSWADT 295 Brackenreg v Comcare Australia (1995) 56 FCR 335; [1995] FCA 1129 CBL v Sydney Water Corporation [2016] NSWCATAD 287 Collins v Urban [2014] NSWCATAP 17 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Commissioner of Police, NSW Police Force v Fine [2014] NSWCA 327 Corporate Affairs Commission v Bradley [1974] NSWLR 391 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 Dennis Willcox Pty Ltd v Commissioner of Taxation (1988) 79 ALR 269; [1988] FCA 244 DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 46 DNY v Public Guardian [2018] NSWCATAD 254 DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114 Fish v Solution 6 Holdings Limited (2006) 225 CLR 180; [2006] HCA 22 FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48 Law Society of NSW v Jackson [1981] 1 NSWLR 730 Marrickville Council v Botany Council [2015] NSWCATAD 144 Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1924) 35 CLR 449; [1924] HCA 46 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Office of Environment and Heritage v Scenic NSW Pty Ltd [2019] NSWCATAP 87 Pittwater Council v Walker [2015] NSWCATAD 34 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (receivers and managers appointed) [2017] NSWCA 8 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28 Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285 Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14 Roth v Roads and Traffic Authority of NSW [2009] NSWSC 295 Salemi v MacKellar (No 2) (1977) 137 CLR 396; [1977] HCA 26 Scott v Federal Commissioner of Taxation (1966) 117 CLR 514; [1966] HCA 48 Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36 Taylor v Office of Destination NSW [2018] NSWCATAD 195 Tran v R [2017] NSWCCA 93 Transport for NSW v Searle [2018] NSWCATAP 93 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 Walker v Gosford City Council [2016] NSWCATAD 207 Wentworth v New South Wales Bar Association (1992) 176 CLR 239; [1992] HCA 24 Wilson v Chan & Naylor Parramatta Pty Ltd as trustee for Chan & Naylor Parramatta Trust [2016] NSWCATAP 236 Yakmor v Hamdoush (No 2) [2009] NSWCA 284 ZKK v ZKL [2019] NSWCATAP 81 Category: Principal judgment Parties: AP 20/07117 Rice Marketing Board for the State of New South Wales (Appellant) Forbidden Foods Pty Limited (Respondent) Rice Growers Ltd t/as SunRice (Joined Party)