FHG v Cumberland City Council; Cumberland City Council v FHG [2023] NSWCATAP 91

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FHG v Cumberland City Council; Cumberland City Council v FHG [2023] NSWCATAP 91 Hearing dates: 2 December 2022 Date of orders: 30 March 2023 Decision date: 30 March 2023 Jurisdiction: Appeal Panel Before: D Robertson, Senior Member E Bishop SC, Senior Member Decision: (1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication or disclosure of the name of the appellant in proceedings 2022/00088146, referred to in these reasons for decision as FHG, is prohibited. (2) The time for filing the appeal in proceedings 2022/00088146 be extended pursuant to s 41 of the Civil and Administrative Tribunal Act to 28 March 2022. (3) The time for filing the appeal in proceedings 2022/00128177 be extended pursuant to s 41 of the Civil and Administrative Tribunal Act to 4 May 2022. (4) Order 2(a) made by the Tribunal in proceedings 2021/0069505 on 22 December 2021 is varied to read: "The applicant be provided with unredacted copies of the documents identified in Ms Karaki's statement of 14 July 2021 as documents numbered 3, 5, 10, 11, 15, 16, 17, and 20 and with copies of the documents there identified as documents numbered 1, 2 and 4 with redactions as incorporated in the copies of those documents respectively identified as Confidential Exhibit R6 and Tabs 23 and 24 in the Cumberland City Council's bundle of evidence filed for proceedings 2022/00128177." (5) The appeals are otherwise dismissed. (6) Either party may, within 14 days of the date of publication of these reasons, file and serve submissions, not exceeding five pages, and any evidence relied upon in support, seeking an order in relation to the costs of either or both appeals. (7) If either party files submissions pursuant to order (6), the other party may file and serve submissions not exceeding five pages in response to any such submissions, and any evidence relied upon in support, within a further 14 days. (8) Any submissions filed in accordance with orders (6) and (7) should address the issue whether the question of costs can be determined on the basis of the written submissions and without a further hearing. (9) If neither party files submissions in accordance with order (6) there will be no order in relation to the costs of either appeal. Catchwords: ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 (NSW) – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29 – Prohibition on disclosure of information contained in a report made in good faith – Whether there is a requirement for positive proof that a report was made in good faith – Whether the Tribunal can be satisfied that a document is a report to which s 29 applies, or includes information contained in such a report, in the absence of the certificate from the Secretary for which s 29(1A) provides. ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 (NSW) – Whether the Tribunal has jurisdiction to order an agency to create a new record pursuant to s 75. ADMINISTRATIVE LAW – Procedural fairness – Where the Council proceeded on the basis that a document was not before the Tribunal – Where the Tribunal considered the document and determined that the document should be disclosed, subject to redactions – Whether the Council was denied procedural fairness when it was apparent from other findings of the Tribunal that the Council's misunderstanding had no impact upon the Tribunal's decision – No denial of procedural fairness. Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2000 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Government Information (Public Access) Act 2009 (NSW) Income Tax Assessment Act 1936 (Cth) Cases Cited: Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 Bellamy v Transport for NSW [2019] NSWCATAD 54 Collins v Urban [2014] NSWCATAP 17 Commissioner of Police, New South Wales v Barrett [2015] NSWCATAP 68 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 EQZ v Kari Ltd [2022] NSWCATAD 221 ERJ v South Eastern Sydney Local Health District [2022] NSWCATAD 260 Evans v Chief Commissioner of State Revenue [2022] NSWCATAD 307 FHG v Cumberland City Council [2021] NSWCATAD 379 Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442 Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 Marden v Pharmacy Council of New South Wales [2017] NSWCATAD 34 Mino v Legal Aid NSW [2015] NSWCATAD 245 O'Grady v Sutherland Shire Council [2020] NSWCATAD 50 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Raslan v Pan [2015] NSWCATAP 12 Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs: Ex part Lam (2003) CLR 1 Siu v Department of Family and Community Services [2016] NSWCATAD 115 State of New South Wales v Jackson [2007] NSWCA 279 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 Tisdale v Cumberland City Council [2021] NSWCATAD 132 Walker v Northern Beaches Council [2021] NSWCATAD 251 Walker v Northern Beaches Council [2021] NSWCATAD 251 Wiskich v Composite Materials Australia Pty Ltd [2016] NSWCATAP 221 Texts Cited: None cited Category: Principal judgment Parties: 2022/00088146: FHG (Appellant) Cumberland City Council (Respondent) -br-2022/00128177: Cumberland City Council (Appellant) FHG (Respondent) Representation: Solicitors: FHG (Self-represented) C McFadzean (Cumberland City Council) File Number(s): 2022/00088146; 2022/00128177 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication or disclosure of the name of the appellant in proceedings 2022/00088146, referred to in these reasons for decision as FHG, is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 379 Date of Decision: 22 December 2021 Before: P H Molony, Senior Member File Number(s): 2021/0069505