McKay v Transport for NSW [2017] NSWCATAD 212

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McKay v Transport for NSW [2017] NSWCATAD 212 Hearing dates: 20 - 21 March 2017 Date of orders: 30 June 2017 Decision date: 30 June 2017 Before: D Dinnen, Senior Member Decision: (1) I affirm the reviewable decision in relation to the classification of each of Documents 1, 3-10, 12-23, 28-29 and 31-34 as Cabinet information;

(2) I affirm the reviewable decision in relation to the classification of Documents 26 and 27 as subject to parliamentary privilege and a conclusive presumption that there is an overriding public interest against disclosure, and refuse access to those documents;

(3) I set aside the First Respondent's reviewable decision in relation to Documents 11, 24, 25, 30 and 35, and substitute my decision in relation to those documents, granting access to Documents 11 and 25, and refusing access to Documents 24, 30 and 35 at this time;

(4) I set aside the balance of the reviewable decision and remit the matter back to the First Respondent in accordance with s63(3)(d) of the ADR Act in accordance with the following directions:

(a) First Respondent to reconsider its reviewable decision with specific reference to the requirements of s53 of the GIPA Act, conducting additional searches and identifying the nature and extent of the searches it has conducted in response to the Applicant's access application, by 31 July 2017.

(b) Matter is listed for directions Tuesday 15 August 2017 at 9:30am. Catchwords: Government information – cabinet information – reasonable grounds – cabinet submissions – dominant purpose – cabinet deliberations or decisions – minister's position – parliamentary privilege – public interest considerations in favour of disclosure – public interest considerations against disclosure – confidentiality – breach of confidence – legitimate business, commercial, professional or financial interests – unfair advantage or disadvantage – correct and preferable decision Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Government Information (Public Access) Act 2009 Parliamentary Privileges Act 1987 Cases Cited: Bennison v Department of Premier and Cabinet [2016] NSWCATAD 101 D'Adam v New South Wales [2014] NSWCATAD 68 D'Adam v New South Wales Treasury [2015] NSWCATAP 61 Gold and Copper Resource Pty Limited v NSW Trade and Investment [2016] NSWCATAD 267 Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 Tebutt v Minister for Lands and Water [2015] NSWCATAD 95 Category: Principal judgment Parties: The Hon. Jodi McKay MP (Applicant) Transport for NSW (First Respondent) The Premier of NSW (Second Respondent) Information Commissioner (Third Respondent) Representation: Counsel: S Lees (Applicant) C Winnett (First and Second Respondents)