Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Hearing dates: 12 February 20134, 5 and 6 March 2013 Decision date: 07 November 2013 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: Application File No 123123 1. The decision of BDA is set aside and in substitution thereof a decision to grant ASD access to the information deleted from the 2009 Valuation and the 2010 and 2011 Updated Valuations. Application File No 123124 2. The decision of BDA in regard to: (a) the deletions on pages 67 and 107 of BDA's Final Phase RFD - Addendum No. 2, (b) the deletions on pages of 124 to 126 (para 3.1.1) of BDA's Final Phase Proponent Brief to BM, (c) the deletions on pages 140 and 147-149 (para 3.1.1) of BDA's Final Phase Proponent Brief to LL, (d) the deleted fixed payment dollar amounts in para 1(b), para 2(a) and 2(c), on pages 3, 4, 37 and 38, in LL's (Stage 1 RFDP) - Final Phase - Schedule 3, (e) the deletions in paragraph 2(e)(2), under the heading 'Fixed Payments', and the last sentence in 2(a), under the heading 'Value Payments', in LL's (Stage 1 RFDP) - Final Phase - Schedule 3, and (f) the deletions in the Minutes of the BDA Evaluation Panel and Executive Review Panel is set aside and in substitution thereof a decision that ASD be granted access to these deletions. 3. The decision of BDA in regard to the remaining information in dispute, the subject of this application (including the deletions in BM-Final Phase-Returnable Schedule 3), is affirmed. Application File No 123125 4. The decision of BDA in regard to the information in the KPMG Report is affirmed. Catchwords: Government information - access application - information contained in tender documents - whether public interest considerations against disclosure out weight the public interest considerations in favour of disclosure - prejudice the supply of confidential information that facilitates the effective exercise of an agency's functions - disclosure of information provided in confidence - reveal commercial-in-confidence provision in a government contract - diminish the competitive commercial value of any information to any person- prejudice any person's legitimate business, commercial and financial interests Legislation Cited: Administrative Decisions Tribunal Act 1997 Barangaroo Delivery Authority Act 2009 Contaminated Lands Management Act 1997 Government Information (Public Access) Act 2009 Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 (NSW repealed) Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR180 Cannon and Australian Quality Egg Farms Ltd (1994) QIC 94 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Mangan and the Treasury [2005] AATA 898 McLennan v University of New England [2013] NSWADT 113 McKinnon v Secretary, Department of Treasury [2006] HCA 45 McKinnon v Blacktown City Council [2012] NSWADT 44 Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195 Re Lobo and Department of Immigration and Citizenship 92011) 124 ALD 238 Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111, 108 ALR 163 Sitel and Employment Advocate (2005) 40 AAR 552 Sobh v Victoria Police (1993) 1 VR 41 Van der Wall v University of Sydney [2008] NSWADT 213 Woodhouse v City of Sydney Council [2012] NSWADT 95 Category: Principal judgment Parties: Australians for Sustainable Development Inc (Applicant) Barangaroo Delivery Authority (First Respondent) Lend Lease Corporation Limited (Second Respondent) Lend Lease (Millers Point) Pty Ltd (Third Respondent) KPMG (Fourth Respondent) Representation: Counsel M Robinson SC with B Tronson (Applicant) J Lazarus (First Respondent) R Higgins (Second and Third Respondent) A Bell SC with S Keizer (Fourth Respondent) Norbert Lipton & Co (Applicant) Clayton Utz (First Respondent) Herbert Smith Freehills (Second and Third Respondent) File Number(s): 123123 123124 123125 Publication restriction: S75 Administrative Decisions Tribunal Act 1997