Walsh v Department of Lands [2008] NSWADT 340

CITATION: Walsh v Department of Lands [2008] NSWADT 340

DIVISION: General Division

APPLICANT John Walsh

PARTIES: Intervening Party Hanson Construction Materials Pty Ltd

RESPONDENT Hanson Construction Materials Pty Ltd

FILE NUMBER: 073220

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 17 October 2008

DATE OF DECISION: 24 December 2008

BEFORE: Wilson R - Judicial Member

CATCHWORDS: Access to documents

LEGISLATION CITED : Freedom of Information Act 1989

APPLICANT In person

REPRESENTATION: INTERVENING PARTY F Chilton and A Fisher, solicitors

RESPONDENT K O'Keefe, solicitor

ORDERS: 1. The intervener is granted leave to intervene and be joined as a party in the proceedings 2. The respondent's decision to release the documents is affirmed.

REASONS FOR DECISION 1 The applicant in these proceedings, Mr John Walsh, has commenced proceedings in this Tribunal to review a decision by the respondent to grant access to a corporate entity, the latter having made the primary application to the respondent for access under the applicable legislation. The respondent considered that primary application and decided to grant access to the documents that it held. These documents concerned the affairs of persons who were clients of the applicant and, on their behalf, he sought an internal review of this decision whereby he requested that access be denied to the primary applicant. His internal review was unsuccessful and he then commenced these proceedings, but in his own name as applicant. In substance though, he has commenced these proceedings on behalf of his clients The primary applicant, Hanson Construction Materials Pty Ltd did not seek to intervene initially. 2 During the course of preparation the parties agreed to proceed by way of submission of evidence as necessary and the filing of written submissions. Neither party required a viva voce hearing as to the substantive issues. The submissions were eventually filed, the applicant filing on 27.09.07 (exhibit A) and the respondent on 09.01.08 (exhibit B). The delay was occasioned by documents going astray, as the correspondence explains. No issue is taken by either party as to this aspect. Following receipt of submissions the Tribunal reserved its decision, the matter to be decided on the papers filed. 3 Subsequently, by letter dated 17.04.08 (exhibit D1), the primary applicant sought leave to intervene in the proceedings. This caused the Tribunal to defer its deliberations until this application was determined, one way or the other. The intervener filed submissions on 07.05.08 (exhibit D2) and a timetable was set to determine this application: allowing for subsequent amendments, this timetable required the applicant and the respondent to file submissions by 18.06.08 and the intervening party to file submissions in reply by 02.07.08. The parties have not required a hearing in relation to this application and it was therefore reserved to be determined on the materials filed, provision having been made in the timetable for the parties to approach the Tribunal should they require a hearing on the intervener's application. There were two further developments. On 04.07.08 the applicant's clients, Messrs Michael and Brett McDonald, sent a letter to the Tribunal Registry (dated 18.06.08) advising of their position, namely that they objected to the joinder and foreshadowed an adjournment application, for an unspecified purpose, following the Tribunal's decision on the intervener's application. This appears to have been prompted by an enquiry from the Tribunal Registry concerning submissions. Whilst they are not parties to the proceedings, the Tribunal should take their communications into account by reason of their interest in the proceedings. In this regard it is noted that the applicant, Mr Walsh, appointed Messrs McDonald as his agents (exhibit F), the applicant having retired from practice (exhibit G). Subsequently, on 10.07.08 the respondent advised that it did not object to the intervener's joinder as a party (exhibit H). The Tribunal's deliberations would have been reserved on this last mentioned date, however there was a delay of some weeks in ascertaining whether any further submissions were to come. Consequently, the effective date upon which the Tribunal reserved was 10.08.08, allowing 4 weeks for this delay. 4 The orders sought by the intervener are set forth in its submissions dated 07.05.08 at paragraph 20. Clearly the intervener has an interest and it is appropriate that it be joined as a party. The delay in seeking joinder has been adequately addressed and explained in the intervener's submissions. However, as the submissions indicate, the intervener wishes to argue in the substantive proceedings that the decision under review should be affirmed. For the reasons set forth below the Tribunal has decided that this would be the appropriate order to make in the substantive proceedings, even in the absence of any submissions that the intervening party may wish to make concerning access to documents. Consequently, there is no need to make the further orders sought by the intervener in relation to its further participation in the proceedings; there would be no point in doing so, it being sufficient that the intervener be joined as a party should there be an appeal taken. 5 The substantive submissions filed by the applicant and the respondent have been marked as exhibits as they both, to some extent, contain factual assertions which have not been the subject of other evidence. The parties wish to rely upon these factual assertions. Neither party has objected to the receipt of the submissions to the extent that they contain factual assertions. However the respondent does, in essence, take the point that no persuasive evidence, in the form of statements of witnesses or other documents, has been filed by the applicant. The letter from the respondent dated 16.08.07 and annexures was also admitted and marked Exhibit C, and the application to the Tribunal and annexed decision records was admitted and marked Exhibit D. The exempt documents filed by the respondent are admitted and marked Exhibit E. 6 The documents in Exhibit E are five in number, the first three and the fifth being single folios, whilst the fourth is a document of multiple folios. The applicant in fact is aware of the contents of the documents contained in Exhibit E, by reason of the way in which the documents came into being. The primary applicant, the intervening party, of course does not have this knowledge. Consequently the applicant, Mr Walsh, was clearly in a position to adduce relevant evidence should he have wished to do so. This is by reason of his knowledge of the documents which he alleges to be exempt, and also by reason of his knowledge of the circumstances which are relevant to the exemptions which he alleges. However, apart from what has been mentioned above, he has filed no such evidence. Thus the evidence is in short compass 7 The respondent's position is that the documents have not been proven to be exempt documents and that, if they are found to fall within the exemptions for which the Act provides, access to them all should still be granted. Consequently, it is the applicant who asserts that the documents are exempt and that access should not be granted. 8 The applicant relies upon two specific exemptions provided for in the Act and, in addition, argues that the correct and preferable decision is that access should not be granted to the primary applicant. There are also references in the applicant's submissions to publicly available documents and confidential information. These arguments must now be examined, albeit with some difficulty due to the absence of any detailed evidence. 9 It is common ground between the parties that the applicant's clients and the respondent had, in the past, some dealings in relation to a particular parcel of land. There have been written communications between them in relation to this parcel, and there are other documents which concern these dealings. The applicant argues that there is information contained in these documents which: i. was given by the applicant's clients to the respondent in confidence; ii. has commercial value to the applicant's clients, which value would diminish if released; iii. is information concerning the business and financial affairs of the applicant's clients, which would adversely affect those affairs if released; and iv. as to part at least, is information which is publicly available (section 25(1)(b) and (c)). 10 There is no direct assertion, nor any implicit suggestion, in the documents contained in Exhibit E, that the communications, and other documents, involved the passing of information in the context of any understanding between the communicants that a confidential relationship was to be observed. The evidence is simply not there. The applicant's submissions do not point to any specific statement in any of the documents, and appear to be relying upon the nature of the communications, and the dealings, for this purpose. Further, it is obvious that those communications would eventually lead to information, which is the subject of the communications, being placed on public record. Accordingly, the Tribunal is not satisfied that a finding that the communications were confidential is a proper one to make. 11 An examination of the documents in Exhibit E clearly shows what the nature of the dealings between the parties were. The applicant submits that it is the monetary figure shown in these documents which has commercial value and that, if it be disclosed, the commercial value of such information will be diminished (Exhibit A clause 7(1)(b) submission). It is thereby suggested that this information only has commercial value if it is kept secret. If it be released the value of this information will be diminished, should there be later negotiations concerning other dealings with the particular parcel of land. Given that this information is publicly available, even if it in fact does have a commercial value, it is not possible to find that releasing it pursuant to the Freedom of Information Act 1989 would diminish whatever value it may have during the course of future dealings. There is no specific evidence before the Tribunal showing that there is any particular reason for attributing a commercial value to this information and there is no evidence to show that, in these circumstances, a diminution could reasonable be expected to flow from its disclosure. If there be some aspect arising from the fact that the applicant's clients have adjoining parcels of land, or have licence agreements with other persons who are able to conduct mining operations, as the submissions mention, the evidence has not been adduced that enables the Tribunal to make appropriate findings in the applicant's favour as to the application of clause 7(1)(b) of the Schedule to the Act. 12 In relation to clause 7(1)(c) the applicant submits that the documents in Exhibit E contain a reference to a particular name which is a matter relating to the business affairs of the applicant's client. This is most likely correct, although the evidence is a little bare. However, there is no evidence demonstrating why disclosure of this name could reasonable be expected to have an adverse effect on the business affairs of the applicant's clients. Whilst there may be some connection between this name and the licence agreement with adjoining landholders, the evidence does not explain this aspect any further: to find that some adverse effect could reasonably be expected from disclosure of the name would be to simply speculate rather than to draw any inference properly from evidence before the Tribunal. The Tribunal is unwilling to embark on mere speculation. 13 The Tribunal has marked the documents in Exhibit E with the numbers 1 through to 5. There is substance in the argument that document 5 would eventually become a public document that is available upon payment of a fee to the holder of the public record upon which this document would, in the normal course, be placed. Consequently, section 25(1)(c) of the Act would have application so as to enable access to the document to be refused. This is a specific statutory provision outside the exemption provisions in section 25(1)(a). Even if this be so the ultimate determination must be made as to whether the correct and preferable decision is to grant or refuse access to this document. 14 The applicant also argues that the correct decision is to refuse access in part because this document (number 5) was provided in confidence (this submission applied to the other documents over which exemption is claimed as well). This submission cannot be accepted as this particular document clearly was intended for inclusion on a public record. 15 The applicant then relies upon the fact that this document is available as a matter of public record. Document number 5 does not appear on its face to be a document that is simply an office copy held by the respondent. It appears to be a document obtained by the respondent by way of search of the relevant public register. The primary applicant could obtain a copy of this same document by searching the public register. The question is whether he should be required to do so in the circumstances. The respondent is willing to provide the primary applicant with a copy of this document from its own records. It has not been submitted that there is any bar on it doing so arising from any particular legislation. 16 The applicant's submissions note that document is available to the primary applicant by paying a fee to the respondent, and no doubt, in ordinary circumstances, it could be apposite to require an applicant to access the document through channels that are publicly available. However, the respondent is willing to provide a copy without requiring the primary applicant to pursue this formal type of enquiry. The Tribunal is of the view that a practical approach is required here and that it would be perverse to refuse to grant access to the document when the related documents are to be released. The respondent has adopted a common sense approach to the question and is willing to release the document to the primary applicant, and the Tribunal should do likewise. 17 For these reasons the respondent's determination to grant access to the documents, over which exemption is asserted by the applicant, is affirmed.