Ugur v Commissioner of Police [2021] NSWCATAP 298

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ugur v Commissioner of Police [2021] NSWCATAP 298 Hearing dates: 11 June 2021 Date of orders: 5 October 2021 Decision date: 05 October 2021 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member Dr J Lucy, Senior Member Decision: (1) To the extent required, leave to appeal is granted. (2) The appeal is allowed in part. (3) Set aside the decision of the Tribunal made on 2 December 2020 insofar as it affirmed the respondent's decision under s 58 (1) (b) of the Government Information (Public Access) Act 2009 (NSW) that the information requested in the appellant's access application dated 22 December 2019 is not held by the respondent (the Decision). (4) The proceedings brought by the appellant for administrative review of the Decision are remitted to a differently constituted Tribunal for redetermination. (5) The Decision is remitted to the respondent pursuant to s 65 of the Administrative Decisions Review Act 1997 for reconsideration prior to the redetermination by the Tribunal of the proceedings for administrative review of the Decision; (6) The respondent 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 appellant and the Tribunal, within 42 days of the date of these Orders; (7) The appellant is to inform the Tribunal and the respondent whether he wishes to proceed with the application for review of the Decision, or withdraw his application in respect of that decision, within 21 days of his receipt of the respondent's decision pursuant to Order (6); (8) If the appellant decides to proceed with his application for review of the Decision, he is to request the Registry to relist the matter for directions when he informs the Tribunal of his decision in accordance with Order (7) above. (9) Otherwise, the appeal is dismissed. Catchwords: GOVERNMENT INFORMATION-review of agency's decision that it held no further information-onus on agency to justify decision-reason to believe agency may hold further information-issue whether reasonable searches carried out as required by s 53 (2) of the Government Information (Public Access) Act 2009 (NSW)-inadequacies in the evidence from the agency-review of agency's decision to withhold some information in documents disclosed to the appellant ADMINISTRATIVE REVIEW-remit decision about whether information is held by the agency to the agency for reconsideration under s 65 of the Administrative Decisions Review Act 1997 (NSW) APPEALS- errors of law affecting decision about whether information was held by the agency- failing to address issue whether agency conducted reasonable searches-conclusions based upon evidence that lacked probative force concerning particular information-overlooking or misunderstanding significant evidence - no error concerning redacted information Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Mifsud v Campbell (1991) 21 NSWLR 725 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Category: Principal judgment Parties: Haci Emin Orhan Ugur (Appellant) Commissioner of Police (Respondent) Representation: Solicitors: Appellant (Self-represented) Norton Rose Fulbright (Respondent) File Number(s): 2021/00056023 (AP 21/00626) Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Not Applicable Date of Decision: 2 December 2020 Before: C Ludlow, Senior Member File Number(s): 2020/00166818