Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99 (4 May 2005)

Last Updated: 5 May 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99


PARTIES: APPLICANT
Joe Miriani
RESPONDENT
Commissioner for Fair Trading, Office of Fair Trading



FILE NUMBERS: 043293

HEARING DATES: 7/12/2004

SUBMISSIONS CLOSED: 07/12/2004



DECISION DATE: 04/05/2005

BEFORE: O'Connor K - DCJ (President)





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Legal Profession Act 1987
Privacy & Personal Information Protection Act 1998
Registration of Interests in Goods Regulation 1999

CASES CITED: Perrin’s case (1993) 31 NSWLR 606

APPLICATION: Jurisdiction

MATTER FOR DECISION: Principal matter; costs


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
A Wilson, solicitor

ORDERS: 1. Application dismissed
2. Applicant to pay the respondent $1000 towards its costs of responding to the application


Reasons for Decision:

REASONS FOR DECISION

1 The applicant has purported to exercise the right to apply to the Tribunal for review of a determination made under the Freedom of Information Act 1989 (the FOI Act) by the respondent agency, the Office of Fair Trading (OFT). The purported application for review was filed in the Tribunal on 3 September 2004.

2 OFT objects to the application on the basis that the application is incompetent. OFT asserts that its primary determination in this matter fully satisfied the applicant’s access application. OFT maintained a similar position in relation to the request by the applicant for internal review of the primary determination. It did not respond to that application on the basis that the primary determination had fully satisfied his original application.

3 The applicant asserts that OFT did not fully respond to his original access application. In his view, therefore, he was entitled to apply for internal review. He submits that OFT’s failure to deal with the application gives rise, under the provisions of the FOI Act, to a deemed refusal; and because of that he is entitled to apply for external review.

The Access Application

4 The application under notice was one of two made by the applicant to OFT in May 2004. The Tribunal is presently dealing with several applications for review of the determinations of various agencies made in connection with applications by the applicant under the FOI Act. These cases arise from the one set of circumstances which can be briefly described as follows. The applicant was the owner, subject to finance, of a motor vehicle, a BMW, for about two years until around April 2003. The motor vehicle was repossessed by the finance company and sold. The applicant is aggrieved over certain procedures and events that led to the car’s repossession, as well as those surrounding its sale. He has made access applications to the Police Service as well as to OFT.

5 The access application to OFT was as follows:

‘Please provide copy of all documents held by the Register of Encumbered Vehicles (REVS) and other relevant divisions in the Office of Fair Trading regarding my personal affairs, which include information relating to the following motor vehicle:

Make: BMW

Model: 323ci

Registration No: AJH34W and 144414

VIN/Chassis No: WBABM32030EX34112

Engine no. 28189453256S4’.

6 On 27 May 2004 the FOI Co-ordinator, OFT advised that a search had been done on OFT’s relevant databases ‘in an attempt to identify documents relating to you as an individual’. The reply acknowledged that there was administrative correspondence between the applicant and REVS officers. The applicant was granted full access to those documents. The reply indicated that there were no other documents found that related to him as an individual. The result was that the applicant received no documents held in the REVS database.

7 The applicant requested internal review of this decision. He said that he had requested access to ‘all documents’ held by REVS and other relevant divisions of OFT regarding his personal affairs.

8 He claimed that the access granted was only to documents containing his name and contact details, and that this was a very narrow interpretation of the meaning of ‘personal affairs’. He went on to say that he had been told:

‘that REVS does not hold any documents regarding my personal affairs other than the documentation included in the FOI determination. Her findings raise serious questions about the adequacy of her search and inquiries conducted in order to determine this matter. REVS must hold other ‘prescribed documents’ in order to comply with statutory requirements pursuant to the Registration of Interests in Goods Act 1986 and its regulations. There were also a number of letters and facsimiles that I personally sent to OFT that did not appear in [the] determination.’

9 OFT declined to conduct an internal review. The delegate of the Commissioner asserted that ‘your application does not meet the conditions for a review of an FOI determination’. The reply referred to the circumstances listed in s 34(7) as ones entitling a person to request an internal review. It asserted that none were applicable, in particular as full access had been granted to the documents requested. If full access has been granted, this reply is correct.

10 This is an understandable attitude. As is well known, the REVS database is a register upon which credit providers register their connection with a vehicle. This information can be checked by anyone, most typically someone thinking of buying a car and wishing to be assured as to the extent it is affected by encumbrances. The information is organised and searched by reference to unique vehicle identifiers such as registration number. There is no record of the owner or the owner’s personal particulars. Ownership data is held in the separate Road and Traffic Authority (RTA) system.

11 OFT’s reply noted the term used by the applicant confining the scope of his request - ‘personal affairs’. This term is found in cl 6 of Schedule 1 to the Act, the provision exempting from access (other than by the subject of the documents) documents the disclosure of which would involve an unreasonable disclosure of the ‘personal affairs’ of an individual. The reply noted that the courts had acknowledged that this term embraces the composite collection of the activities personal to the individual concerned (per Kirby P in Perrin’s case (1993) 31 NSWLR 606).

12 The reply also dealt with the applicant’s assertions in relation to the requirements of the Registration of Interests in Goods Regulation 1999. Clause 7 was set out, as it lists what categories of information are ‘prescribed information’ requiring inclusion in the REVS database.

13 It is plain that none of the items listed there require any recording of the personal information of the owner. The only details that involve the collection of identifying particulars concern the creditor, as follows:

‘(j) the name and address of the person applying to be registered as the creditor who has the registrable interest’.

14 In conclusion the reply stated that the REVS database does not hold personal information.

15 The Tribunal notes that in his reply to the primary determination the applicant has asserted that the search that had been undertaken in response to his request had not been sufficient. Such an assertion is tantamount to saying that documents have been refused. The Tribunal has consistently indicated that a sufficiency of search objection falls within the scheme of the Act, and must be dealt with.

16 The applicant filed his application for external review on 3 September 2004. The applicant stated in the application:

‘It is my understanding, contrary to the advice received from the agency, that information relating to registration details and other identifiers of motor vehicles recorded in the Register of Encumbered Vehicles database held by the Office of Fair Trading is information concerning my personal affairs. The fact that the Register of Encumbered Vehicles database does not contain the name or contact details of the registered operator of a registered (or registrable) vehicle does not make the use of the vehicle’s identifiers non-personal information’.

17 The Tribunal directed OFT to provide an affidavit describing the data elements of the REVS system and addressing the question of whether REVS holds any personal information.

18 At hearing the Tribunal had before it the following:

1. Bundle of documents relating to the request lodged by OFT

2. Affidavit of applicant

3. Letter from OFT attaching affidavit from the acting general manager, REVS

4. OFT document entitled ‘costs Miriani’

5. Letter from applicant to the Tribunal dated 2 November 2004.

19 At hearing OFT submitted, as reflected in its reply to the internal review application, that the applicant was not a ‘person aggrieved’ within the meaning of the FOI Act as there had been full compliance with the request.

20 In answer to the point made by the applicant that his original request was for documents found ‘in all other relevant divisions’ of OFT as well as REVS, OFT referred to a separate determination dated 16 June 2004 in respect of the other request made by the applicant at about the same time. That determination appears at tab 10 of the bundle of documents. The first part of that request was in broadly similar terms to the request under notice in this case. The second part sought various internal procedural documents of OFT. As to the scope of the investigation into whether OFT held relevant documents, the reply stated that documents in existence and held by OFT at the time of the application had been captured for the purposes of the request.

21 The applicant’s affidavit contains a series of submissions. It includes an assertion that ‘the existence of any encumbrance in prescribed goods is part of the composite collection of activities personal to the individual concern [sic] as any legal claim concerns or affects a person as an individual, whether it is known to other persons or not (see annexure C)’. Annexure C contains a letter from the Manager, Records Access Unit, RTA going to the question of whether a person’s number plate is part of their personal affairs, the Ombudsman’s guidelines on the meaning of personal affairs and the NSW Premier’s Department’s FOI Procedure Manual as it relates to the same matter.

22 In the remainder of the submission the applicant refers to events involving OFT which he regards as unjust:

‘OFT cancelled a registered interest recorded by the RTA in respect of some alleged fine default on 5 May 2003. OFT also issued a Certificate of Registered Interest on 23 June 2003 to a solicitors firm acting on behalf of a smash repair company. The Certificate of Registered Interest allowed the smash repair company to start legal proceedings against me (See annexures E and K).

OFT did not amend prescribed information contained in the REVS database on request pursuant to Section 39 of the FOI Act (See annexure D).

The REVS Show Cause Procedure instructs staff members to establish ownership of the vehicle/vessel. Documentation substantiating an interest would be a contract signed by both parties, or a Court Order (See annexure I).’

23 In the annexed material there is a letter dated 5 April 2004 from the applicant to OFT requesting an investigation into why there was shown against the vehicle a registered encumbrance post-dating 26 February 2002 in the name of a credit provider, when, he says, that credit provider had cancelled its interest on that date. As to the most recent entry which he queried, OFT advised that the interest was a new one involving a new owner of the vehicle. The material which follows includes a letter from the solicitors for the new owner stating that he is involved in a ‘significant dispute’ with the applicant.

24 The file includes further correspondence from the applicant and a reply from a senior officer of OFT seeking to deal with the applicant’s concerns over the interests registered by his former credit provider.

25 The REVS system is, clearly, a system designed to store information about vehicles and any encumbrances affecting them. It does not store the personal details of owners. What type of car a person drives, its number, its colour, its features are all matters which could, quite reasonably, be described as being information relating to the ‘personal affairs’ of an individual. But this characterisation only becomes relevant if the information can somehow be linked to the individual’s name or identity.

26 There is no evidence that REVS operates in a way that links this kind of information to a named individual. The role and function of REVS in the New South Wales community is well known. In my view the applicant in pressing this argument pursued an argument of no merit.

27 The Administrative Decisions Tribunal Act 1997 s 73(5)(h) provides:

‘(5) The Tribunal: ...

(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.’

28 In the Tribunal’s view these proceedings are vexatious, misconceived and lack substance. OFT fully responded to the access application. It did not refuse any relevant documents. No credible basis has been put forward for suspecting that OFT may have done otherwise than undertake a proper search. The fact that the applicant may have some letters from OFT which did not show up in the schedule given to him does not necessarily demonstrate that the search was less than adequate.

29 The applicant is very concerned over the circumstances that led to the loss of his BMW. This has led him to bring applications under the FOI Act and the Privacy and Personal Information Protection Act 1998 against the OFT and the Police Service; and it is evident from the material he filed in these proceedings that he has been, or is, involved in disputes with the finance company and with the new owner, presumably over whether he can reclaim title to the car.

30 In anticipation of a possible finding of the kind now made, Mr Wilson who appeared for OFT applied for costs. The Act provides materially:

‘88 Costs

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.

(3) ...

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.’

31 Almost invariably there are no applications for costs in General Division matters. It is rare for the Tribunal to make costs orders

32 The Tribunal has issued a Practice Note on this subject. The Practice Note No 12 gives the following circumstances as ones that may give rise to the conclusion that there are ‘special circumstances’ warranting a costs order:

· whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as -

...(vi) vexatiously conducting the proceeding

· whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding

· 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.

33 The Tribunal notes that the applicant is representing himself. In the Tribunal’s opinion, it is apparent that he is an applicant of some sophistication. His documents reflect meticulous preparation, and are written in a fluent way.

34 At a planning meeting the applicant was warned that he might face a costs application if he pursued his application for review, in light of OFT’s expressed position that it had fully responded to his access application. The applicant wrote to the Tribunal on 2 November 2004 after that meeting and said that the ‘unexpected comments’ by the Tribunal had ‘caused me a certain degree of confusion and surprise as the issue of costs is not mentioned in any printed information relating to initial planning meetings’. He then noted part of the contents of Practice Note 12, and asserted that he was not aware of any special circumstances that might apply to his application for review. He proceeded to file substantial material, and appeared at the hearing on 7 December.

35 The applicant was put on notice at the planning meeting of the possibility of a costs application both by OFT and the Tribunal. The Practice Note refers clearly to the possibility that costs may be imposed where a respondent is exposed to an untenable claim. Moreover there are a number of readily accessible Tribunal decisions dealing with the circumstances where an order under s 88 might be made.

36 What sets this case apart from the many FOI cases where agencies have found themselves responding to difficult and persistent applicants is that the agency has consistently asserted that it has fully and properly responded to the request, and therefore the applicant’s conduct is oppressive, in that the agency has done all it can do.

37 In the Tribunal’s opinion, in this instance the agency has demonstrated that it has properly and fully dealt with the request, and there is no issue properly left to press.

38 The FOI Act confers important rights on citizens; and agencies allocate administrative resources to ensuring that those rights are respected. If agencies fully respond, claiming no exemptions, then they should have some protection from being called on to devote further resources to responding to the application. Those resources are being diverted from good applications. On the other hand, some applicants may have difficulty in appreciating that an agency has fully responded, and they perhaps should not necessarily therefore be made the subject of a costs order for pressing on to the Tribunal.

39 If a citizen continues to press an application in circumstances where it is reasonable to conclude that the applicant had enough understanding of the Act as to be likely to appreciate that the application was an empty one, then some sanction should be administered by the Tribunal. In the Tribunal’s opinion, this applicant has engaged in distorted logic in an attempt to demonstrate that the REVS system, in particular, is some kind of repository of ‘personal affairs’ information or, more broadly, ‘personal information’. The proposition is, in the Tribunal’s view, simply unsustainable; and the Tribunal believes that the applicant is of sufficient sophistication to appreciate that.

40 In these circumstances there should be an order for costs.

41 OFT submitted a sheet referring only to the professional legal time caught up by this application. The sheet does not record, for example, disbursements and other expenses connected with the preparation of documentation. The total amount claimed for 15 hours’ professional time is $3,370 using, as the index, the Crown Solicitor’s Office charge-out rates. The Tribunal’s understanding is that the legal officers involved in this matter are staff members of OFT, so that index seems to the Tribunal to have little or no relevance.

42 In my view, while the applicant has behaved in a way that warrants a sanction, in the circumstances an order to pay $1000 towards OFT’s conduct is sufficient. This order will also, the Tribunal hopes, serve as a deterrent to future applications with similar characteristics.

Order

1. Application dismissed.

2. Applicant to pay the respondent $1000 towards its costs of responding to the application.