Newcastle East Residents Group Inc v Destination NSW [2022] NSWCATAD 282 | Case summary | Zoe

NSWNSWCATAD

Newcastle East Residents Group Inc v Destination NSW

[2022] NSWCATAD 282

NCAT Administrative and Equal Opportunity|2020-12-22

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Court

NCAT Administrative and Equal Opportunity

Decision date

2020-12-22

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

REASONS FOR DECISION

On 6 January 2020, Newcastle East Residents Group Inc (the Applicant) applied to Destination NSW ("DNSW"), the first respondent, under the Government Information (Public) Access Act 2009 ("the GIPA Act") for access to information ("the access application"): 'On behalf of the Newcastle East Residents Group I herby [sic] request the names and content of the following: A. The original agreements, and alterations to such, relating to the Newcastle 500 event between: 1. DNSW and Supercars, 2. DNSW and City of Newcastle (AKA Newcastle City Council), 3. DNSW, Supercars and City of Newcastle (AKA Newcastle City Council), NB exceptions - the original MOU and the original Newcastle 500 Civil Works Tripartite Agreement 2. Orders made by the minister for each race held and any subsequent ones. NB If any of the above information is already available on a website I would appreciate advice as to where and how to access it.'
On 12 February 2020, the access application was determined by an officer of DNSW, Mr Neville D'Costa, Director of Procurement and Legal ("the Decision"). Eighteen documents were identified as falling within the scope of the access application as set out in the Decision. DNSW determined to: 1. provide access in full to 10 of the documents (documents 1, 3, 4 and 12 to 18 inclusive) under s 58(1)(a) of the GIPA Act; 2. provide partial access to 5 documents (documents 5, 6, 7, 8 and 9), with redactions of information subject to an overriding public interest against disclosure under s 58(1)(a) and (d) of the GIPA Act; and 3. refuse access in full to 3 documents (documents 2, 10 and 11) under s 58(1)(d) of the GIPA Act.
On 15 April 2020, the Applicant applied to the Tribunal under s 100 of the GIPA Act for administrative review of the Decision.
The task of the Tribunal on this review is to determine, having regard to the material before it and the applicable law, whether the decision to redact information in documents 5, 6, 7 and 9 and refuse access in full to documents 2, 10 and 11, because there is an overriding public interest against disclosure of the information was the correct and preferable decision: s 63 of the Administrative Decisions Review Act 1997 ("ADR Act"). It is for the Respondent agency(s) to establish that the decision is justified: see s 105 of the GIPA Act.

[3]

Procedural history these proceedings

On 21 July 2020, at a Case Conference the Tribunal made directions which included the joinder of the Council to the proceedings. At that same Case Conference V8SA determined that it did not wish to appear and be heard in these proceedings (see s 104(3) of the GIPA Act). The Tribunal made orders for the service of evidence and other material to be relied upon at hearing which proceeded by telephone on 12 October 2020.
The hearing on 12 October 2020 was adjourned by Senior Member Wall. Further directions were made for the parties to complete their evidence.
On 10 December 2020, Senior Member Hamilton SC part heard the substantive proceedings. On 22 December 2020, the proceedings continued before the same Senior Member.
At the hearing on 22 December 2020, leave was granted to the Council to file a confidential submission containing a comparative table of matters redacted from documents in question in the matter. The Council was granted leave to file and serve an aide-memoire concerning the evidence of a Dr Everingham. Both documents were to be filed by 29 January 2021. The Applicant was also at that hearing granted leave to file and serve a document in reply to the aide-memoire by 5 February 2021.
On 12 February 2021, Senior Member Hamilton SC extended the time for compliance with the orders made on 22 December 2020 to 26 February 2021.
It appears from the Tribunal's file that at this stage the proceedings were marked as being reserved, on and from 26 February 2021.
Due to unforeseen circumstances, Senior Member Hamilton SC became unavailable. On 25 June 2021, the Tribunal's Registry wrote to the parties advising them of this circumstance and indicated that the President intended to reconstitute the Tribunal. The parties were invited to make submissions about the proposed reconstitution by 5 July 2021.
The parties made submissions. On 15 July 2021, the Tribunal informed them that Senior Member Mulvey would determine the matter on the papers.
In preparation of writing these reasons for decision I have been provided with a copy of all the material as set out in paragraphs [20] - [23] below and the transcript of the hearing on 15 and 22 December 2020.

[8]

Legislation

The object of the GIPA Act as set out in s 3 is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information: s 9(1) of the GIPA Act.
There is a general public interest in favour of disclosure of government information: s 12(1) of the GIPA Act. Examples of public interest considerations in favour of disclosure, which are not limited, are provided in a Note to s 12.
The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act, and as relevant to this review are discussed below.
The determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provides as follows: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the Applicant may be taken into account: s 55 of the GIPA Act. Those factors are the Applicant's identity and relationship with any other person, the Applicant's motives for making the access application, and any other factors particular to the Applicant.
Disclosure of information in response to an access application cannot be made subject to any conditions on the use or disclosure of the information: s 73 of the GIPA Act.

[10]

Public interest considerations in favour of disclosure

In addition to the general public interest in favour of disclosure of information, DNSW accepts that the public interest considerations in favour of disclosure are those identified in s12(1) of the GIPA Act and paras (a), (b) and (c) of the Note to s 12 in the GIPA Act (see para [30] - [31] above). Whilst the Council did not specifically address the general public interest in favour of disclosure of the information, the same contention raised by DNSW can be gleaned from the Council's submissions generally.
The Applicant contends the general interest in favour of disclosure of the information is high. Residents are restricted from freely accessing their homes for a period of up to 9 weeks each year in the lead up, during and following the Newcastle 500. Residents mental health is affected during this period. The Applicant says there is little financial information available to the public, which, would enable a cost benefit analysis to be undertaken measured against the claims by DNSW, the Council and V8SA concerning the benefits to the wider community and business in the Hunter region because of the event.
The Applicant refers to the Motor Racing (Sydney and Newcastle) Act 2008 ("the MRA"), which provides for the legislative power of DNSW to prepare for, the management and conduct of, and the works associated with, a motor race under the Act. It asserts the Motor Racing Act, also in part, suspends the provisions of other legislation, including, the Environmental Planning and Assessment Act 1979, National Parks and Wildlife Act 1974, Local Government Act 1993 and the Roads Act 1993 (see Part 4 of the MRA). The Applicant submits that many checks and balances for example, that would normally occur under the Environmental Planning and Assessment Act, when assessing large and intrusive developments, such as the Newcastle 500, are removed by operation of the Motor Racing Act. As such, the opportunity for public involvement and transparency about the Newcastle 500, its operation and construction associated with it, is significantly restricted. In these circumstances, the Applicant seeks to achieve transparency by obtaining the information sought in its access application under the GIPA Act.
It contends that is important to understanding how, and, on what, public money is being spent. Particular emphasis is placed on consideration (c) and (a)-(b) in the note to s 12 of the GIPA Act by the Applicant.
The Applicant also submits that significant weight should be given to general public interest considerations in favour of disclosure due to the harm to residents caused as a result of the Newcastle 500. The information being sought might reveal a lack of evidence of benefit to the public, particularly given the purported visitor numbers to the Newcastle area and the income the Newcastle 500 injects into the local economy.
I find, as set out below, each of the matters is described in paragraphs [39] - [40] and [42] - [43] are relevant public interest considerations in favour of disclosure of the information sought in the access request. The matters is [41] are matters to consider pursuant to s 55 of the GIPA Act subject to its limitations.

[11]

Consideration of the grounds that release of the information gives rise to a public interest against disclosure

I will first deal with documents 2, 10 and 11, which is the Strategic Investment Agreement between DNSW and V8SA (document 2) and variations to that agreement (documents 10 and 11) ("the Strategic Investment Documents" and "the SI Agreement"). The information contained in each these documents has not been disclosed in full. The Respondents contend that there is an overriding public interest against disclosure of the information contained in the Strategic Investment Documents. The Applicant presses for the disclosure of the information.
The statements of Mr Anthony Hogarth (General Counsel V8SA), Mr Ross Pearson (COO of DNSW) and Mr D'Costa establishes the Strategic Investment Documents together comprise an agreement between DNSW and V8SA governing the terms of DNSW's strategic investment in the Newcastle 500. The documents include the monetary and value-in-kind funding provided by DNSW for the staging of the event and the benefits provided by V8SA in return for that funding.
DNSW makes the following general observations about the nature of the information contained in the Strategic Investment Documents.
First, Mr D'Costa and Mr Hogarth give evidence that the nature and content of the agreement is confidential. Mr D'Costa says that it was the expectation of each party that the terms of the SI Agreement were confidential and they would maintain confidential.
Second, disclosure of the information contained in the Strategic Investment Documents would be highly unusual within the major events industry. Both Mr Pearson and Mr D'Costa state that information of this kind is not publicly available. Mr Pearson says that the ongoing confidentiality of this information is "central to the acquisition and bidding process" for major events.
Third, the Strategic Investment Documents contain terms of the commercial relationship between DNSW and V8SA. The documents reveal commercially sensitive information about V8SA' business. Such information could include the nature of V8SA' business, the sponsorship assets which V8SA sells or provides, the quantum of revenue V8SA earns from selling or providing sponsorship assets and other performance and delivery obligations that V8SA owes to its corporate and government partners.
Fourth, the SI Agreement is the final result of a bidding process. Disclosure of the information contained in the Strategic Investment Documents would reveal valuable information about the general approach of DNSW to the bidding and acquisition process in relation to major events which event organisers could use to their advantage in negotiations with DNSW.
DNSW submits that in relation to the Strategic Investment Documents the following considerations against disclosure in the table to s 14 of the GIPA Act are relevant.
DNSW contends that there is a public interest against disclosure of the information as provided in cl 1(f) and (g) and cl 4(a), (b), (c) and (d) of the Table to s 14 of the GIPA Act: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (f) prejudice the effective exercise by an agency of the agency's functions (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, … 4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market, (b) reveal commercial-in-confidence provisions of a government contract, (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests …
The council supports DNSW's contentions concerning documents 2, 10 and 11. Apart from the statement of Mr Hogarth, V8SA did not make any submission in the proceedings. What can be gleaned from Mr Hogarth's statement, is, that V8SA essentially supports DNSW's position.
In considering the public interest considerations against disclosure, the following principles are relevant: 1. The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. 1. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC." 1. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]). 2. In considering the evidence required to establish that disclosure "could reasonably be expected to have" one of the effects stated in cll 1 or 3, the relevant principles are: 1. a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; 2. there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; and 3. prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses: Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [59].

[12]

Clause 1(f) prejudice the effective exercise by an agency of the agency's functions

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
DNSW asserts that its relevant agency function is identifying, attracting and procuring major events to achieve its principal object, being to secure economic and social benefits for the people of NSW. Mr Pearson gives evidence of the ways in which disclosure could reasonably be expected to prejudice the effective exercise of DNSW's functions, which can be conveniently summarised as follows: 1. disclosure could reasonably be expected to give DNSW's competitors a commercial advantage in the event acquisition and bidding process; 2. disclosure could be expected to impact upon the way event providers negotiate with DNSW and could be expected to detrimentally impact upon the outcomes of future negotiations; and 3. disclosure could reasonably be expected to have a negative impact upon DNSW's relationship with V8SA and other event providers and their willingness to engage with DNSW.
Mr Pearson says that disclosure of the Strategic Investment Documents is capable of detrimentally impacting upon the ability of DNSW to successfully attract and secure major events in the future, or it would be more expensive for it to do so. He provides reasons for his opinion which include, but not limited to disclosure could result in competitor's knowing precisely the commercial terms of the SI Agreement; and knowledge could allow competitors to use this to their advantage in negotiations. As such, disclosure of the Strategic Investment Documents could reasonably be expected to prejudice the effective performance of DNSW's functions, which goes to the very heart of its core function and could jeopardise DNSW's capacity to achieve its principal object.
The Council supports DNSW's position.
The Applicant submits that disclosure of the Strategic Investment Documents would "give insight into the operations of DNSW". It contends that the process of facilitating major events is much more complex than just monetary figures involved, such as the exclusivity of funding assistance to a promoter is just as important as the finite amount of funding.
I am satisfied that there is public interest in favour of disclosure of the Strategic Investment Documents. The public interest considerations in favour of disclosure are those identified in s12(1) of the GIPA Act and paras (a) and particularly (c) of the Note to s 12 in the GIPA Act. Weight is attached to these considerations. Accountability of DNSW will be promoted if the public is aware of the general nature of their contractual obligations.
I find that a function of DNSW is identifying, attracting and procuring major events to achieve its principal object, being to secure economic and social benefits for the people of NSW. I accept Mr Pearson's evidence supports this finding.
I am not satisfied that Mr Pearson's evidence discloses there is support for his opinion that disclosure could reasonably be expected to give DNSW's competitors a commercial advantage in the event acquisition and bidding process of events such as the Newcastle 500. Mr Pearson's evidence which is set out in paragraphs [27] - [35] of his statement goes significantly to matters of confidentiality and other matters.
It is unclear whether there is a bidding process for the event, which, would be affected if the information in the SI Agreement is disclosed. This is in some way supported by the email from Mark Stratford to Joan Browning dated 19 October 2016 disclosing that the council did not submit a bid document for the Newcastle 500. Rather, the council was approached by DNSW to entertain a delegate's scoping party about the event.
The SI Agreement is the final result of the process, not the process itself, or the negotiation. I am not persuaded that the evidence supports disclosure of the Strategic Investment Documents could reasonably be expected to prejudice the effective performance of DNSW's functions.
If the information in the SI Agreement is disclosed, the evidence does not support, real and substantial grounds that DNSW could be prejudiced in identifying, attracting and procuring major events to achieve its principal object, being to secure economic and social benefits for the people of NSW.
I find that clause 1(f) is not a relevant public interest against disclosure.

[13]

(g) result in the disclosure of information provided to an agency in confidence

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to result in the disclosure of information provided to an agency in confidence.
DNSW contends that the information contained in the Strategic Investment Documents was provided in confidence and disclosure would result in disclosure of confidential information provided to DNSW in confidence.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
Mr D'Costa states that there was a mutual expectation that the terms of the SI Agreement were confidential and that each party would keep the information confidential. Mr Hogarth gives similar evidence. No cross-examination took place, their evidence is uncontested which I accept.
While the operation of the confidentiality term of the SI Agreement does not alter any obligation under the GIPA Act, in my view it evidences the confidential nature of the SI Agreement and information contained therein. I note and have considered the decision in Meriton Property Services Pty Ltd v UrbanGrowth NSW [2017] NSWCATAD 71, where the Tribunal noted that such a clause does not alter the fact that information that was provided in confidence and when treated as such, remains confidential information.
I have noted the Applicant's submissions that Meriton can be distinguished as this application relates to a group of concerned and interested residents and member of the public, rather than corporate interests. The submission is misconceived as it pertains to the operation of 1(g), but it could be relevant to the s 13 balancing exercise.
I have considered the uncontested evidence of Mr Hogarth that in summary reflects the same position contended by DNSW. I accept his evidence as it relates to the expectation of confidentiality of the information contained in documents 2, 10 and 11.
I accept that the same confidentiality extends to the information in documents 10 and 11 as the documents amend and vary the SI Agreement. They are documents which were intended by DNSW to remain confidential. I find that disclosure of documents 2, 10 and 11, would reveal the terms and conditions of the SI Agreement which could reasonably be expected to result in disclosure of information provided to DNSW in confidence.
I find that clause 1(g) is a relevant public interest against disclosure of documents 2, 10 and 11.

[14]

4(a) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to result in the disclosure of information provided to an agency in confidence.
Mr Pearson explains the effect the disclosure of the information would have on DNSW's competitiveness in terms of the amount of support DNSW provides and the key performance indicators required for the event organiser to meet. I accept this uncontested evidence. I reject DNSW's argument concerning whether it is "unusual" for this information to be disclosed, as being relevant to my determination.
Similar to the nature of the confidential information concerning my findings about 1(g) above, I find the evidence of Mr Pearson establishes real and substantial grounds supporting his opinion that disclosure of the information contained in the SI Agreement could reasonably be expected to undermine competitive neutrality in connection with the stated function of DNSW in respect of major events which it competes. I accept Mr Pearson's evidence that part of DNSW's function is to secure major events in Australia and it competes with other States within Australia and internationally.
At paragraph [34] of his affidavit, Mr Pearson uses the term 'may' on several occasions when outlining the possible effect of placing DNSW at a commercial disadvantage in the market to secure major events if the confidential information in the SI Agreement s disclosed. I find there is no real and substantial evidence of this risk, over and above, a mere statement.
I find that clause 4(a) is a relevant public interest against disclosure of documents 2, 10 and 11 because disclosure of the information contained in the SI Agreement could reasonably be expected to undermine competitive neutrality in connection with DNSW's in respect of major events which it competes.

[15]

4(b) reveal commercial-in-confidence provisions of a government contract

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal commercial-in-confidence provisions of a government contract.
I find that the SI Agreement is a "government contract" for the purposes of the GIPA Act because it meets the definition in cl. 1 of sch. 4 of the GIPA Act.
I repeat my findings concerning 1(g) above.
I accept the unchallenged evidence of Mr D'Costa and find that he has established that the SI Agreement is fundamentally a financing agreement between DNSW and V8SA.
[NOT FOR PUBLICATION]
I am satisfied that the SI Agreement, at least in part, contains commercial-in-confidence provisions as set out in (a) of the definition in cl. 1 of sch 4 of the GIPA Act.
Mr D'Costa at [24]-[25] of his statement sets out the SI Agreement contains information, which if disclosed, would reveal the cost structure and profit margins and the full base case financial model of V8SA. At paragraph [28] he says that in his opinion, if other governments who compete for events such as the Newcastle 500, had access to the information, they "could" use the information to calculate the cost structure and profit margin of V8SA and in doing so, revealing commercial-in-confidence information and V8SA's financial model.
The Applicant submits that V8SA operates in a "very small market which includes working with multiple government agencies who facilitate events in various States and Territories", which is consistent with DNSW's evidence.
I accept Mr D'Costa's evidence that the nature of the information in the SI Agreement is confidential information and meets the definition commercial-in-confidence information contained in (b) and (c) of the definition in cl. 1 of sch 4 of the GIPA Act.
Mr D'Costa explains that if the terms of the SI Agreement were disclosed, other event providers who compete with V8SA would have a competitive advantage. I accept that disclosure of the information could reasonably be expected to disclose commercial-in-confidence information.
I find that clause 4(b) is a relevant public interest against disclosure of documents 2, 10 and 11.

[16]

4(c) diminish the competitive commercial value of any information to any person

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to diminish the competitive commercial value of any information to any person.
In McKinnon v Blacktown City Council [2012] NSWADT 44 at [77]-[78], the Tribunal accepted that the words "commercial Value" include the following: 65. "Competitive commercial value" is a new phrase in right to information legislation. Under right to information legislation in other jurisdictions, "commercial value" has been defined in a number of ways, including: (i) "if [the information] is valuable for the purposes of carrying on the commercial activity in which the entity is engaged" ( Sitel and Employment Advocate (2005) 40 AAR 552 at 561. Cf Cannon and Australian Quality Egg Farms Ltd (1994) QIC 94 at 16); (ii) "if a genuine arms-length buyer is prepared to pay [to] obtain the information" ( Sitel and Employment Advocate (2005) 40 AAR 552 at 561, citing Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491, (iii) "capable of being described as commercial in character' (Mangan and the Treasury [2005] AATA 898 [36]). 66. In Cannon and Australian Quality Egg Farms Ltd the Qld Information Commissioner said (at 122) in relation to the meaning of "commercial" that: [t]he common link is to activities carried on for the purpose of generating income or profits. I refer to income because some government agencies are established to provide goods or services to the community for a fee, but with no expectation of ever generating profits: rather the aim is to pursue some government policy objective...There is arguably a strong public interest in access to information about government activities of this kind on the basis that taxpayers who are called upon to subsidise such quasi-commercial activities should be informed about strategies and costs. 67. In addition, the following has been found to affect commercial value: (i) commercial value may expire with the passage of time (see, eg, Re Brown and Minister for Administrative Services (1990) 21 ALD 526 at 533); (ii) the commercial value of information which is publicly available cannot be diminished by disclosure (Re: Public Interest Advocacy Centre and Department of Community Services and Health and Schering Pty Ltd (1991) 23 ALD 714 at 724, cited in Cannon and Australian Quality Egg Farms Ltd ). 68. In Cannon and Australian Quality Egg Farms Ltd , the Qld Information Commissioner said that the respondent must show why and how the information has commercial value for the respondent, including "the commercial context in which [the respondent] operates, and the significance of the information in that context" and "that there is a reasonable basis for the expectation" that disclosure would diminish that value (at 18).
I also accept this reasoning.
DNSW submitted that for information to have a "commercial value", there must also be "some uniqueness attaching to the information that justifies treating it as exclusive, secret or confidential" Hall v Department of Premier and Cabinet [2012] NSWADT 46 at 56; Media Research Group v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 at [48], which I accept.
In McKinnon, the following was said at [80]: The Macquarie Dictionary On Line defines competitive thus - adjective of, relating to, involving, or decided by competition: competitive examination. "Competitive commercial value" therefore connotes information of commercial value gained in, or relating to, a competitive commercial or business context, including competitive information relating to the competitive purchase and provision of government services.
DNSW contends that the information contained in the Strategic Investment Documents has competitive commercial value which would be diminished if the information were disclosed as follows.
First, Mr Hogarth gives evidence that the SI Agreement contains the nature of V8SA business, sponsorship assets which it sells or provides to partners, the revenue earned in selling and providing the sponsorship assets and its performance obligations. I accept that this information has competitive commercial value to V8SA as it pertains to the sale of advertising/sponsorship assets. However, the precise commercial value is not referred to in the statement of Mr Hogarth. Nor, on my reading of the SI Agreement is the price and revenue disclosed in documents 2, 10 or 11.
Second, the information contained in the SI Agreement is said by DNSW to be the final product of a negotiation process. It contains unique terms which, if disclosed would place V8SA at a commercial disadvantage. Mr D'Costa at paragraph [35] of his statement does not refer to which clauses/terms of the SI Agreement would diminish the competitive commercial value of the information to V8SA. He makes a mere statement about the entire agreement. I do not accept that the evidence, on this basis, establishes that all of the information contained in the SI Agreement could reasonably be expected to diminish the competitive commercial value of any information to any person.
Third, for similar reasons I am not satisfied that the evidence establishes that the information in the Strategic Investment Documents information could reasonably be expected to diminish the competitive commercial value of information to DNSW.
I find that clause 4(c) is not a relevant public interest against disclosure of documents 2, 10 and 11.

[17]

4(d) prejudice any person's legitimate business, commercial, professional or financial interests

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.
DNSW submits that disclosure of the Strategic Investment Documents would prejudice the legitimate business, commercial and financial interests of both DSW and V8SA.
In relation to DNSW, the relevant business, commercial or financial interest is said to be in securing the best events for the best price in order to maximise the benefits to the people of New South Wales. Mr D'Costa, says, although funded by the NSW Government, DNSW operates commercially to secure and finance major events. Mr Pearson's explains the ways in which disclosure of the Strategic Investment Documents could prejudice the agency's business, commercial and financial interests. These include:

The disclosure of the SI Agreement is likely to give competitors a commercial advantage by knowing precisely the commercial terms of the SI Agreement. Disclosure would reveal what DNSW is willing to invest in and on what terms.
The disclosure of the information may affect the way event organisers negotiate with DNSW in the future. DNSW submit that other event organisers may demand similar terms in future negotiations.
Disclosure of confidential information may result in event organisers being less willing to work with DNSW in the future. It could lead to other event organising becoming disgruntled because their agreement with DNSW is less favourable.

Mr Pearson concludes: Ultimately, based on my experience, it is my view that disclosure of the information in the Strategic Investment Agreement and Document 11 would prejudice DNSW's business, financial and commercial interests by adversely affecting future negotiations to attract and secure major events. I think that disclosure is capable of adversely affecting the ability of DNSW to successfully attract and secure future major events and would thereby impact upon the social and economic benefits which DNSW is able to secure for the people of New South Wales.
In relation to V8SA, the relevant business, commercial or financial interest is the ability of V8SA to negotiate favourable agreements with other government partners and private sector entities in relation to the staging of V8SA events.
I accept that release of the Strategic Investment Documents, would in part, reasonably be expected to prejudice DNSW's legitimate business, commercial, professional or financial interests. It does so by disclosing confidential sensitive and commercial-in-confidence information as set out above. I do not accept that by releasing the document, with the redactions as below, would prejudice DNSW's ongoing ability to negotiate with V8SA or other event organisers in the future.
In relation to V8SA, the relevant business or commercial interest is said to be its ability to negotiate favourably with other government partners and the private sector in relation to staging supercar events.
I have considered Mr Hogarth's evidence. Mr Hogarth has not established real and substantial reasons for his opinion. He makes mere statements concerning the purported prejudice without demonstrating that part of the evidence he relies upon to support that statement. I have placed limited weight on his evidence. However, I note that it supports Mr Pearson's more fulsome grounds for his opinion.
The evidence establishes that clause 4(d) is a relevant public interest against disclosure of documents 2, 10 and 11.

[19]

The relevant parts of the GIPA Act

The Council relies upon the following parts of the GIPA Act in response to the information request: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions … (f) prejudice the effective exercise by an agency of the agency's functions, …
In addition, clauses 4 (b), (c) and (d) of the table to s 14 of the GIPA Act are also relied upon.
The following parts of each of the documents that have been redacted contain precise monetary figures which have been varied after the Previous Proceedings were determined. The same monetary figures were redacted in the Tripartite Agreement in the Previous Proceedings. The amendments include: On pages 8-9 of Document 5, the redactions include the monetary figure that was in the definitions in the Tripartite Agreement. That monetary figure was a permissible redaction in the Previous Proceedings. The other redactions in Document 5 reveal some of the figures in "Annexure 1 - Cash flow / payment schedule for Government Funding" and related narrative. Pages 16, 18-27 of Document 6 contain precise monetary figures and a narrative to explain those figures including the works. Pages 32-34 and 36 of Document 7 contain precise monetary figures and a narrative to explain those figures including the works. Pages 40, 43-45, 47, 50-52 of Document 9 contain precise monetary figures and a narrative to explain those figures including the works. Page 29 of Document 7, page 38 of Document 8 and page 40 of Document 9 contain quotes from clauses to the Tripartite Agreement that relate to the variations referred to above.
For parity, the Council submits that the same decision should be made as in the Previous Proceedings, where redacted information which has been the subject to amendments or variations, should in these proceedings also be redacted for the same reasons. I find this submission to be particularly persuasive, providing the analysis of the GIPA Act results in similar findings.
The Applicants submit: Firstly, it is submitted that the request by the Applicant in 2020 for the 'dollar amounts' is different from that originally made in 2017 as the current application for review is over three years later in time. The Tribunal can take into account that the passage of time may diminish the commercial sensitivity of information: Destination NSW v Taylor [2019] NSWCATAP 123 at [13]. Secondly, it is submitted that the continuation of the race event since 2017 without substantial improvement or alleviation of the impacts on residents, nor a substantiation of the benefits of the event, supports the view that the public interest in favour of disclosure is significantly higher than it was in 2017.

[20]

Cl. 4(d) table to s 14 - Prejudice legitimate business, commercial, professional or financial interests

I have reviewed the redacted parts of documents 5, 6, 7 and 9.
I am satisfied that there is public interest in favour of disclosure of documents 5,6,7 and 9. The public interest considerations in favour of disclosure are those identified in s12(1) of the GIPA Act and paras (a) and (c) of the Note to s 12 in the GIPA Act. Weight is attached to these considerations.
Each of the subject documents clearly refer and relate to a variation of the Tripartite Agreement. The Previous Decision redacted various parts of the Tripartite Agreement which disclosed, amongst other things, the financial information contained in the Tripartite Agreement and a narration explaining the financial information and also variations to Annexure 1 to Document 3 in the Previous Proceedings.
The parts redacted on pages 95 -99 of document 5, pages 103, 105, 106 - 115 of document 6, pages 116, 119, 120,121, 123 and 124 of document 7 and pages 130, 132, 133, 137, 138 and 139 substantially refer to dollar and percentage figures which signals the commercial and financial interests of the parties to the Tripartite Agreement.
If disclosed, I accept the evidence of Ms Merle and I am satisfied the information would prejudice both the Council and the service providers (IEDM and their contractors). The information contains a description of works undertaken and quantifies the variations charged for the services. The dollar and percentage figures would reduce the parties' ability to negotiate prices in a competitive market by giving other suppliers a commercial advantage. It would also restrict the Council's ability to seek tenders for similar work in the future as it would reveal what the Council would be willing to pay for these types of work. Although these proceedings are different to the Previous Proceedings, in that different information is being sought to be disclosed, I accept the Council's parity argument and find that cl 4(d) is a relevant public interest consideration against disclosure.
As it relates to the dollar and percentage figures, I find disclosure would reasonably be expected to prejudice the Council's legitimate business, commercial, professional or financial interests. This is a relevant public interest consideration against disclosure.

[24]

The balancing exercise required by s 13 of the GIPA Act

I have found that there are public interest considerations in favour of disclosure of the information sought by the Applicant. Indeed, it is not disputed by the respondents, that, particularly (a)-(c) to the note in s12(1) are apposite. I am satisfied that disclosure of the information sought would certainly promote each of the matters as contained in those provisions. I have attached weight to each of those matters.
It is trite to say that disclosure of the information sought would further the identified public interest considerations in favour of disclosure, and the general public interest (s 12(1) of the GIPA Act).
I have also considered the personal factors of the application to which s 55 of the GIPA Act provides: 55 CONSIDERATION OF PERSONAL FACTORS OF APPLICATION (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application" ) into account as provided by this section-- (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
The varying personal matters are set out in the evidence of Dr Everingham, Mr Charge, Mr Burslem, Mr Rufo, Dr Grace, Ms Harris, Ms Brennan and Ms Bisegna which include but is not limited to concerns of the effect the Newcastle 500 has on residents general and mental health, loss of the natural environment and the financial considerations relating to residents and local business. I have considered the damage to residents' homes, noise and vibrations as set out in the evidence of Mr John Davies. I have also considered the evidence of Dr Aisbett. I have afforded moderate weight to all of this evidence. These are all important and relevant matters I have considered in undertaking the balancing exercise in consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
However, most of this evidence goes to the effect the Newcastle 500 has on those members of the Public who are directly affected by the Newcastle 500 and less so, but still relevant, to the wider general public. It also relates to valid complaints they may have about the Newcastle 500. The evidence is weighted accordingly.
I find that the public interest considerations against disclosure (cll 4(a), 4(b) and (c)) sufficiently outweigh those public interest considerations in favour of disclosure. I find that disclosure would provide commercial-in-confidence information being disclosed contrary to the party's expectation that the information would be kept confidential. The disclosure could reasonably result in the matters set out above.
I have considered and weighed the stated public interest considerations against disclosure and find that the balance lies in releasing some parts of documents 2, 10 and 11 (as set out below). This is because the public has the right to access the SI Agreement, generally, and where information is required to be protected to ensure its confidentiality, the relevant parts of those documents can be redacted according (see below). This also balances the public interest in obtaining access to the information while protecting the commercial-in-confidence nature of the information.
I find the correct and preferable decision is to affirm the decision to redact those parts of documents 5, 6, 7 and 9 as contained in the Decision under review. This is because release of the information would disclose financial information and percentages, which, in my view outweighs the public interest considerations in favour of disclosure.
The correct and preferable decision is not to release document 11 in its entirety as it is an amendment to part of the SI Agreement which is to be partly redacted (Document 2).
I have considered whether information in Documents 2 and 10 be disclosed with redactions. I reject DNSW's submission that the entire agreement should not be disclosed because if "all the commercially sensitive material were stripped out of the document what would be left would be so minor that there would be no utility in going through that process effectively and it wouldn't be a just quick and cheap approach to resolving these matter…". I find that by redacting particular parts of the SI Agreement, without that information, disclosure could not reasonably be expected to undermine the competitive neutrality of DNSW or put that body of V8SA at a competitive disadvantage. Nor could disclosure of the redacted information reasonably be expected to reveal commercial-in-confidence information. I note in oral submissions, counsel for DNSW referred Senior Member Hamilton to those parts of Mr D'Costa's evidence [31] which were the particular provisions of the SI Agreement which he had concerns about being disclosed. I accept some of Mr D'Costa's evidence in this regard and I have used that as a basis for deciding which parts of the SI Agreement should be redacted.
Except for the following redactions, I find that Documents 2 and 10 and should be disclosed to the Applicant.

[28]

Principles relating to costs

The primary provision governing costs in relation to proceedings in the Tribunal is s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act"). Pursuant to that section, each party to proceedings is generally to pay their own costs. However, pursuant to s 60(2) of the Act, the Tribunal may award costs if it is satisfied that there are special circumstances warranting it doing so.
In determining whether there are "special circumstances", the Tribunal may have regard to section 60(3) of the Act. (3) In determining whether there are special circumstances warranting an award of costs the, Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant.
"Special circumstances" means circumstances which are out of the ordinary but not necessarily extraordinary or exceptional. Each case will depend on its own facts (see AIN v Medical Council of New South Wales [2015] NSWCATAP at [165]).
Walton J, summarised the general principles when determining an application for costs in Moseley v AB (No 2) [2017] NSWSC 1812 (20 December 2017) at [66-67]. The application related to the Civil Procedure Act 2005 (NSW). However the principals are apposite to this application. [66] If costs are awarded, the Tribunal may determine by whom and to what extent costs are to be paid (see section 60(4) of the Act). The central and overriding principle in this regard is that of doing justice to the parties in each particular case. This involves a heavily contextual assessment that focuses upon the conduct of the litigation itself. A discretion exercised on grounds unconnected with the litigation, or on no grounds at all, is arbitrary or capricious rather than fair or just (see Peters v Peters [1907] NSWStRp 47; (1907) 7 SR (NSW) 398 at 399 (per Street J); Cretazzo v Lombardi (1975) 13 SASR 4 at 11 (per Bray CJ); Scharer v Counting Instruments Ltd [1986] 1 WLR 615 at 621 (per Buckley LJ). [67] The discretion must be exercised judicially and "according to rules of reason and justice, not according to private opinion ... or even benevolence ... or sympathy": Williams v Lewer [1974] 2 NSWLR 91 at 95.
Walton J went on to say that the discretion may be exercised whenever the circumstances warrant, having regard to the scope and purpose of the provisions of the legislation governing costs. However, the discretion must be exercised on a principled basis and in accordance with the principles of proportionality (see Moseley v AB at [68-69]).

[29]

The parties' submissions

The Council submits: "… the Tribunal should exercise its discretion to find that there are special circumstances warranting the award of costs thrown away given that by the late raising of new evidence necessitating the vacation of the hearing date, the NERG has: (a) conducted the proceedings in a way that unnecessarily disadvantaged the Council, pursuant to s 60(3) (a); and (b) been responsible for prolonging unreasonably the time taken to complete the proceedings, pursuant to s 60(3) (b). Further, by this same conduct, NERG has failed to comply with the duty imposed by s 36(3) of the Act, being the "guiding principle" of the Act, namely "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" … Relevant to whether the Tribunal's discretion should be exercised is the following: (a) the evidence in Everingham 2 dates from 2010 and 2017 and was therefore available at the time the Applicant put on its evidence in accordance with the timetable; (b) there has been no explanation as to why that evidence was not put on in order to substantiate the positive propositions put in paragraphs [34] and [35] of the Applicant's submissions; (c) the assertion by the Applicant that this evidence was only put on in answer to the Council's submissions is misconceived. The Council's submissions were merely responsive to the positive propositions put in paragraphs [34] and [35] of the Applicant's submissions and highlighted that there was no substantiating evidence before the Tribunal. The Council did not put anything into issue in its submissions that had not already been put in issue by the Applicant; (d) the Applicant did not provide the evidence to the other parties as soon as it decided to put that evidence on. Instead, it waited and revealed the nature of the evidence before the Tribunal; (e) the Applicant itself did not raise the issue of the further evidence with the Tribunal. The Council drew that to the Tribunal's attention so that more time was not wasted. This is an appropriate case for the exercise of the Tribunal's discretion to find special circumstances warranting the award to Council of its costs thrown away due to the hearing date needing to be vacated, pursuant to s 60(3) (a), (b) and (f).
The Applicant submitted the following.
It should have been self-evident most of the matters raised by Dr Everingham in evidence in chief. It was surprising to the Applicant that the Council sought to dispute the foundations and fundamentals, which, in the Applicant's view, are generally accepted by planning authorities such as local councils. In view of the position the Council took, the Applicant contends that it was reasonable to seek to introduce further evidence which was allowed by the Senior Member. Therefore, in summary, there are no special circumstances which would enable the Tribunal to exercise its discretion to make a costs order.

Newcastle East Residents Group Inc v Destination NSW

At a glance

Court

Decision date

Source

Judgment (32 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (8)