Fiddletown Investments Limited v Department of Premier and Cabinet ; Fiddletown Investments Limited v NSW Treasury [2021] NSWCATAD 17

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fiddletown Investments Limited v Department of Premier and Cabinet ; Fiddletown Investments Limited v NSW Treasury [2021] NSWCATAD 17 Hearing dates: 25 May 2020; last submissions received 11 June 2020 Date of orders: 02 February 2021 Decision date: 02 February 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: S Goodman SC, Senior Member Decision: (1) In proceeding 2020/00023608 (Fiddletown Investments Limited v Department of Premier and Cabinet & Premier of New South Wales): (a) the decision of the Department of Premier and Cabinet (DPC) dated 12 November 2019 is varied such that documents 5, 6, 8 and 16 are released to the Applicant, subject to redaction; (b) the implied decision of the DPC that it does not hold any further information is remitted to the DPC pursuant to s 65 of the Administrative Decisions Review Act 1997 for reconsideration of that decision and: (i) DPC is to affirm the decision, vary the decision or set it aside and make a new decision in substitution, in accordance with s 65(2) of the Administrative Decisions Review Act 1997, and to provide reasons, both to the applicants and the Tribunal, within 28 days of the date of these Reasons; (ii) the applicant is to inform the Tribunal and DPC whether it wishes to proceed with, or withdraw, the application for review, within 42 days of the date of these Reasons; (iii) if the Applicant decides to proceed with its application for review, it is to request the Registry to relist the matter for directions when it informs the Tribunal of its decision in accordance with Order (1)(d) above; (c) the decision of DPC is otherwise affirmed in relation to Documents 1-4, 7, 9-15 and 17-20; (2) In proceeding 2020/00032207 (Fiddletown Investments Limited v New South Wales Treasury & Premier of New South Wales): (a) the decision of NSW Treasury dated 22 November 2019 is varied to the following effect: (i) Document 4A, other than pages 32 – 38, is released to the Applicant; (ii) Documents 4B, 4C, 14B and 14C are released to the Applicant; (iii) Documents 14A and 14D are withheld on the basis that there are reasonable grounds for concluding that there is an overriding public interest against disclosure of the information because it is Cabinet information; (b) the decision of NSW Treasury is otherwise affirmed in respect of Documents 2, 3A, 3D, 4A, 7A, 7B, 10, 13, 14A, 14D and 15. Catchwords: ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure – Cabinet information Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Lake Macquarie Smelter Site (Perpetual Care of Land) Act 2019 Cases Cited: Bennison v NSW Department of Premier and Cabinet [2016] NSWCATAD 101 Commissioner of Police v Danis [2017] NSWCATAP 7 D'Adam v New South Wales Treasury and the Premier of New South Wales [2015] NSWCATAP 61 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 Infrastructure NSW and Department of the Premier and Cabinet v Mookhey [2018] NSWCATAP 213 Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet [2019] NSWCATAD 6 Manning v Bathurst Regional Council [2018] NSWCATAD 132 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 Meacham v Commissioner of Police [2020] NSWCATAP 107 Mookhey v Infrastructure NSW [2017] NSWCATAD 345 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Taylor v Office of Destination NSW [2018] NSWCATAD 195 Transport for NSW & Ors v Robinson [2018] NSWCATAP 123 Transport for NSW v Searle [2018] NSWCATAP 93 University of New South Wales v McGuirk [2006] NSWSC 1362 Texts Cited: Nil Category: Principal judgment Parties: 2020/00023608 Fiddletown Investments Limited (Applicant) Department of Premier and Cabinet (Respondent)