Viva Energy Australia Ltd v Northern Sydney Local Health District [2016] NSWCATAD 72

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Viva Energy Australia Ltd v Northern Sydney Local Health District [2016] NSWCATAD 72 Hearing dates: On the papers Date of orders: 18 April 2016 Decision date: 18 April 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: 1 The application is dismissed; and 2 The Decision under review is affirmed. Catchwords: Government information - access application - whether public interest considerations against disclosure out weight the public interest considerations in favour of disclosure - prejudice a deliberative process of government - prejudice legitimate business and commercial interests Legislation Cited: Government Information (Public Access) Act 2009 Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Viva Energy Australia Ltd (Applicant) Northern Sydney Local Health District (Respondent) Representation: Solicitors: Ashurst Australia (Applicant) Hicksons Lawyers (Respondent) File Number(s): 1510283

Reasons for decision

Background 1. An access application was made under the Government Information (Public Access) Act 2009 ("the GIPA Act") to the Northern Sydney Local Health District ("the NSLHD") on behalf of the Friends of Gore Bay. The access application sought: Any document (or attachment thereto) provided to the Department of Health by or on behalf of Shell Australia in relation to the Human Health Risk Assessment at the Shell Gore Bay Terminal since 16 March 2012 Health and Exposure Study Gore Bay Terminal Final Report by Tim Driscoll, Elmatom Pty Ltd, Nov 2008 Report of Stephenson Environment Management Australia dated 16 December 2011 entitled Ambient Air Quality Monitoring Program Project No 4840/S19296/11 1. Viva Energy operates a petroleum product importation and distribution network in NSW. The Gore Bay Terminal, located in the suburb of Greenwich, is a facility operated by Viva Energy. The Gore Bay Terminal receives petroleum products by ships which are unloaded and sometimes stored at the terminal before being transported further downstream by pipeline. The Gore Bay Terminal has operated continuously for more than a century. 2. At the time of the NSLHD decision which is the subject of these proceedings, Viva Energy was the proponent of the Gore Bay Terminal Modification State Significant Development ("SSD") Project. In May 2015, Viva Energy gave notice that it had decided not to progress its SSD Project. That notice does not preclude Viva from reviving its SSD project at some time in the future. 3. Some residents are opposed to the Gore Bay Terminal and to Viva Energy's proposed project. This opposition centres around the Friends of Gore Bay ("FOGB"). The access applicant is an officer of FOGB and made the access application in that capacity. 4. In response to the access application the NSLHD identified a number of documents as falling within the scope of the request. The NSLHD decided to release some information and decided to refuse access to other information. The NSLHD decision was to release the information identified in relation to points two and three of the access application and to refuse access to information identified in relation to point one of the access application. 5. An application was made to the Information Commissioner seeking review NSLHD's decision to refuse access to documents identified as documents numbered 1, 2, 4, 5, and 18 in the schedule to the NSLHD decision. The Information Commissioner's report recommended that the NSLHD make a new decision having regard to matters raised and guidance given in the report. After taking account of views expressed by the Commissioner, NSLHD took the decision to release documents 1, 2, 4, 5, and 18 ("the Documents" or "the Subject Documents"). 6. The NSLHD advised Viva Energy Australia Ltd ("Viva Energy") of the decision to release the Documents. Viva Energy objected to the release of the documents and requested a review of NSLHD's decision. It objected to the release of the documents on the following basis: 1. for the purposes of clauses 1(e) and (f) of the table to section 14 of the GIPA Act, the premature disclosure of the Documents would reveal a deliberation and consultation in such a way as to prejudice a deliberative process of government; and 2. for the purposes of clause 4(d) of the table to section 14 of the GIPA Act, the disclosure of the Documents would prejudice Viva Energy's legitimate business and commercial interests. 1. The NSLHD decided to release the documents notwithstanding Viva Energy's objections. 2. Viva Energy has sought external review of the determination pursuant to section 100 of the GIPA Act as a person aggrieved by the NSLHD's decision. 3. It seems that Documents 1 and 5 have already been released. The NSLHD explained the circumstances of that release in its written submissions. Viva Energy has identified the documents in issue as: (a) An email of 21 May 2013 from Lesley Randall at Aecom (a firm of environmental consultants retained by Viva Energy) to Michael Staff of NSLHD, and an attached letter of 17 May 2013 from Aecom to Michael Staff, subject: "Gore Bay Terminal Modification - Human Health Risk Assessment Response to Ministry of Health Comments" ("Document 2"). (b) Aecom briefing notes dated 26 March 2013, subject: "Human Health Risk Assessment (HHRA)" ("Document 4") (c) An Aecom document dated 23 April 2013 labelled "DRAFT" and titled "Gore Bay Terminal Modification Human Health Risk Assessment, Greenwich, NSW" ("Document 18") 1. Each of the parties has lodged written submissions in support of their case. I also have two volumes of material filed by the NSLHD comprising copies of all the NSLHD's documents relating to decision. The Documents in dispute are included in that material. The Tribunal's task is to make the correct and preferable decision in this matter having regard to all the material before it. The Tribunal is not limited to the information that was available to the decision maker at the relevant time. It may decide to: (a) affirm the NSLHD's Decision; or (b) vary the NSLHD's Decision; or (c) set aside the NSLHD's Decision and substitute a different decision; or (d) set aside the NSLHD's Decision and remit the matter for reconsideration by the NSLHD in accordance with any directions or recommendations of the Tribunal. 1. I was satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other material provided to the Tribunal. Accordingly, an order has been made dispensing with a hearing pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 and the matter is to be determined on the basis of the material filed.