Hutchinson v Roads & Traffic Authority [2006] NSWADT 21 (27 January 2006)

Last Updated: 27 January 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Hutchinson v Roads & Traffic Authority [2006] NSWADT 21


PARTIES: APPLICANT
Rowan Hutchinson
RESPONDENT
Roads & Traffic Authority



FILE NUMBERS: 043378

HEARING DATES: 08/12/05

SUBMISSIONS CLOSED: 12/12/2005



DECISION DATE: 27/01/2006

BEFORE: Hennessy N - Magistrate (Deputy President)





LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1989

CASES CITED: Bramwell v Repatriation Commission (1998) 51 ALD 56
Lavery v Registrar, Supreme Court of Queensland (1996) 23 AAR 52;N1112/00
A v Minister for Immigration & Multicultural Affairs [2000] FCA 1597
Re Brain Lawlor Automotive Pty Ltd and Collector of Customs (NSW) [1979] FCA 21; (1978) 1 ALD 167
Re Grolier Enterprises and Australian Postal Commission (1977) 1 ALD 10
Re Hare and Commissioner for Superannuation (1979) 2 ALN N662
Poudyal & Anor v Minister for Immigration [2005] FMCA 265
Re Slater and Repatriation Commission [1999] AATA 336

APPLICATION: Jurisdiction

MATTER FOR DECISION: Preliminary matter


APPLICANT REPRESENTATIVE: APPLICANT
B Zipser, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
M Allars, barrister

ORDERS: 1. The Tribunal does not have jurisdiction to make a decision based on either of the applicant’s amended requests for documents
2. The Tribunal makes the following directions:
a) Within 21 days of the date of this decision, the RTA is to provide written submissions on the following questions:
(i) does the Tribunal have power to remit the reviewable decision under s 65 of the ADT Act in the circumstances of this case?
(ii) if so, should the Tribunal exercise its discretion under s 65 to remit the decision?
b) Within a further 21 days, Mr Hutchinson is to provide written submissions in reply on the same questions
c) The Tribunal will determine these questions "on the papers" in accordance with s 76 of the ADT Act.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 Mr Hutchinson applied to the Roads and Traffic Authority (RTA) under the Freedom of Information Act 1989 (FOI Act) for access to certain documents. The documents related to premature road pavement failure or unnecessary road pavement rehabilitation in some areas of the Hume Highway and the Newcastle Freeway. Initially the RTA interpreted this request as applying to documents that had been audited by the Audit Office. The RTA made a determination that the documents were exempt because they related to the audit and investigative functions of the Auditor General and also because they were the subject of secrecy provisions. That determination was affirmed on internal review. Mr Hutchinson applied to the Tribunal for a review of that decision.

2 The parties attended several planning meetings at the Tribunal. At the first planning meeting on 21 January 2005, Mr Hutchinson clarified that he did not intend to confine his request to documents relating to the functions of the Auditor General. It was not until that time that officers from the RTA appreciated that Mr Hutchinson was requesting documents held by the RTA. Mr Bechini, solicitor with the RTA, indicated to Mr Hutchinson at that meeting that providing access to the documents may "substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions": s 25(1)(a1) of the FOI Act. I refer to this exception in these reasons as the "resources exception". Mr Hutchinson made several suggestions as to how to locate the documents but did not narrow his request at that stage. After making further inquiries, officers from the RTA told Mr Hutchinson at the next planning meeting on 22 March 2005 that the work involved in providing him with access would probably come within the resources exception. The RTA did not make a formal decision relying on the exception at that time.

3 On 4 April 2005 Mr Youngman and Mr Sharoo, both of the RTA, went to the Mittagong Works Depot of the RTA to try to identify and locate the documents Mr Hutchinson had requested. With the assistance of a foreman who was familiar with the roadworks, Mr Sharoo spent two days inspecting and recording the files relating to Mr Hutchinson’s request. A further planning meeting was held on 19 April 2005. At that meeting Mr Sharoo explained the work involved in providing Mr Hutchinson with access to the documents he sought. By letter dated 25 April 2005 Mr Hutchinson narrowed the documents he sought to a list of nine categories of documents.

4 The RTA filed statements from five RTA officers in support of its reliance on the resources exception. On the day before the hearing, Mr Hutchinson filed a statement which again narrowed his request for documents. His request was narrowed further during the course of the hearing. In final submissions, Mr Zipser, representing Mr Hutchinson, confined the request further. Mr Hutchinson’s final position was that he asked the Tribunal to assess the correctness of the RTA’s decision on the basis of the documents he requested as at the day of the hearing. Alternatively, Mr Hutchinson submitted that if the Tribunal decided that it would be an unreasonable diversion of the RTA’s resources to comply with that request, the Tribunal should then determine his application on the basis of a more limited request. Both those requests were for considerably fewer documents than Mr Hutchinson had requested in his letter of 25 April 2005.

5 Ms Allars, representing the RTA, submitted that the RTA was unable to respond to a request which was continually changing. She said that the RTA had never made a determination on the basis of either of the alternative requests for documents Mr Hutchinson made during the hearing. The unorthodox manner in which this matter has proceeded raises four preliminary questions. Those questions are:

(a) what is the decision that Mr Hutchinson has asked the Tribunal to review?
(b) is there any utility in reviewing that decision?
(c) does the Tribunal have jurisdiction to make a new decision on the basis of Mr Hutchinson’s amended requests?
(d) if not, should the Tribunal remit the decision to the RTA for reconsideration?

What is the decision that Mr Hutchinson has asked the Tribunal to review?

6 The RTA submitted that it was the RTA’s decision, based on Mr Hutchinson’s request of 25 April 2005 that is the reviewable decision in this case. Mr Hutchinson did not make any submissions to the contrary. I find that the decision under review is the RTA’s determination to refuse access to the documents requested in Mr Hutchinson’s letter of 25 April 2005.

Is there any utility in reviewing that decision?

7 There is no utility in the Tribunal reviewing the RTA’s decision based on Mr Hutchinson’s original request for documents because he has effectively withdrawn that request. His current requests were made, in the alternative, at the hearing.

Does the Tribunal have power to make a new decision on the basis of Mr Hutchinson’s amended requests?

8 Pursuant to s 53 of the FOI Act, a person, such as Mr Hutchinson, who is "aggrieved by a determination made by an agency or Minister under s 24 or s 43 may apply to the Tribunal for a review of the determination." In this case the determination made under s 24 was to refuse access to the documents under s 25(1)(a1). Section 25(1)(a) and (a1) state that:

An agency may refuse access to a document:

(a) if it is an exempt document, or
(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency s resources away from their use by the agency in the exercise of its functions

9 Mr Hutchinson not only narrowed his request after the determination was made, but relied on two alternative requests for documents and asked the Tribunal to rule on the narrower of the two requests if it found that the broader request was covered by the resources exception. It is common for an applicant to narrow his or her request for documents after the agency has made its determination. One of the reasons the Tribunal holds planning meetings prior to a matter being set down for hearing is so that the parties can discuss the scope of the application and, with the assistance of the Tribunal Member, try to identify and/or narrow the documents in dispute. Amending a request in that way does not generally create any difficulties if the agency has refused access under s 25(1)(a) on the basis that the documents are exempt documents. By narrowing the scope of the request in those circumstances an applicant is effectively withdrawing his or her request for particular documents. The withdrawal of such a request does not affect the agency’s determination in relation to the remainder of the documents requested.

10 However, in this case, access was refused under s 25(1)(a) of the FOI Act, the resources exception. That exception relates to "the work involved in dealing with the application for access to the document . . ." (Emphasis added.) The agency’s assessment of the extent to which its resources would be diverted, is based on providing access to all the documents that the applicant has requested in his or her application for access. Unlike the exception for individual documents in s 25(1)(a), the resources exception in s 25(1)(a1) relates to the entire request.

11 The Tribunal’s role is to review the agency’s determination and "decide what the correct and preferable decision is having regard to the material then before it . . .": s 63(1) of the ADT Act. Once the Tribunal has reviewed the agency’s decision it may affirm, vary or set aside that decision: s 63(3) of the ADT Act. Even though the Tribunal is said to "stand in the shoes" of the administrator and may exercise all of the functions of the administrator, the Tribunal is not the administrator. When considering the role of the ADT’s federal counterpart, the Administrative Appeals Tribunal (AAT), Brennan J said in Re Brain Lawlor Automotive Pty Ltd and Collector of Customs (NSW) [1979] FCA 21; (1978) 1 ALD 167 at 175, that, "The AAT is not a primary administrator. It is not the original repository of powers and discretions under an enactment." Accordingly, if an application for access to documents has not been the subject of a decision by the administrator, the Tribunal itself cannot make a decision on that matter on the basis that the administrator could have made such a decision: Re Hare and Commissioner for Superannuation (1979) 2 ALN N662.

12 The Tribunal’s power is limited to reviewing the decision which the administrator has already made. As Mr Hutchinson has effectively withdrawn the application to which that decision relates there is no utility in the Tribunal reviewing that decision. The Tribunal does not have power to make a fresh decision as to whether the resources exception applies to a new, more limited, request for documents. I realise that this conclusion is of no practical benefit to Mr Hutchinson. He has made an effort to narrow his request in the hope that the RTA will be able to comply with his request. The drawbacks of not being able to finally determine an applicant’s application were recognised in the federal context by the authors of Australian Administrative Law, Pearce DC (ed), Butterworths at 1818.16:

"This may seem a pedantic approach and one designed to give rise to multiple actions. It might be said that that it would be better for the AAT to take the whole issue in hand and resolve all aspects of it. But this would change its appeal tribunal role and involve it in making decisions as an original decision-maker – a task that it properly sees itself as not being equipped to perform."

13 For those reasons, despite the obvious policy benefits of allowing an applicant to amend his or her application at any time, the Tribunal does not have jurisdiction to make a decision in relation to an amended application where the agency has relied on the resources exception. Any potential unfairness to an applicant of being denied the opportunity for an external review if he or she narrows the application after the determination, is ameliorated by s 25(5). That section prevents an agency from relying on the resources exception "without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would . . . no longer substantially and unreasonably divert the agency s resources . . ." This provision ensures that an applicant is given the opportunity to narrow the scope of his or her application before the agency makes a determination in reliance on the resources exception. The RTA submitted that it had complied with its obligation under s 25(5) of the FOI Act to assist Mr Hutchinson to narrow his request. Even though that assistance did not take place prior to the original determination, it did take place prior to the RTA finally relying on the resources exception in response to Mr Hutchinson’s letter of 25 April 2005.

14 The conclusion that the Tribunal does not have jurisdiction to make a fresh decision in this case, does not prevent Mr Hutchinson from negotiating with the agency in an attempt to resolve the matter out of court. Nor does it prevent him from withdrawing his application and making a fresh application to the agency. How the RTA deals with such a request is not a matter about which I need to comment at this stage.

Should the Tribunal remit the decision to the RTA for reconsideration?

15 The final issue is whether or not the Tribunal should remit the decision to the RTA for reconsideration? In order to ensure that the parties are afforded procedural fairness, I have decided not to make a decision about this matter without hearing submissions from the parties. Nevertheless, as a starting point, I will set out the text of s 65 and some of the relevant case law.

16 Section 65 of the ADT Act gives the Tribunal power to remit an agency’s decision to the administrator who made it "for reconsideration of the decision by the administrator." The Tribunal may do so "at any stage of proceedings". The provision preserves the right of the applicant to proceed with the application for review in the Tribunal if he or she disagrees with the new decision. The provision states that:

(1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.
(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:

(a) affirm the decision, or
(b) vary the decision, or
(c) set aside the decision and make a new decision in substitution for the decision set aside.

(3) If the administrator varies the decision:

(a) the application is taken to be an application for review of the decision as varied, and
(b) the person who made the application may either:
(i) proceed with the application for review of the decision as varied, or
(ii) withdraw the application.

(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:

(a) the application is taken to be an application for review of the new decision, and
(b) the person who made the application may either:
(i) proceed with the application for review of the new decision, or
(ii) withdraw the application.

17 In Poudyal & Anor v Minister for Immigration [2005] FMCA 265 (16 March 2005) at [48] Smith FM made some general comments about an analogous remitter provision, s 349(2)(c) of the Migration Act 1958 (Cth). After considering relevant case law he concluded that:

These cases suggest that in the normal structure of Commonwealth merits review it is the expectation of the legislature that a Tribunal exercising all the powers of decision vested in the primary decision-maker will fully exercise the relevant power and try to bring finality to the particular administrative process involved. On this basis, the power of remitter is a supplementary power designed to be used when a Tribunal considers it appropriate and administratively efficient in the circumstances to allow the primary administrator, rather than itself, to complete that process.

18 There is no guidance in the ADT Act, or in the second reading speech, as to the precise circumstances in which the Tribunal’s discretion to remit a decision may be exercised. This issue was considered by the Administrative Appeals Tribunal (AAT) in Lavery v Registrar, Supreme Court of Queensland (1996) 23 AAR 52. In that case Deputy President Forgie considered the scope of s 49D of the Administrative Appeals Tribunal Act 1975 (Cth) which is in similar terms to s 65. She noted at [25] that the AAT had never considered whether or not it was within its power to remit a decision in circumstances where, for example, a person applies for a benefit to which they are not entitled and then seeks to change their application to claim a different benefit to which they may be entitled. Similarly, this Tribunal has never directly considered that question.

19 The circumstances where the AAT has decided that it has power to remit a decision include where new evidence has emerged since the decision was made. If that new evidence has the potential to affect the decision and the decision maker would like the chance to re-consider the decision, the Tribunal member may remit the matter: Re Slater and Repatriation Commission [1999] AATA 336. In N1112/00A v Minister for Immigration & Multicultural Affairs, [2000] FCA 1597 the Minister for Immigration requested that the decision be remitted to it for reconsideration because an error of law had been made in the course of the decision making process. Emmett J refused to remit the matter but commented that remittal may be appropriate "where a new fact situation emerged which completely changed the circumstances considered by an original decision maker. . . "

20 As I have said, I do not intend to decide this issue until I have heard submissions from the parties. Consequently I make the following directions:

1. Within 21 days of the date of this decision, the RTA is to provide written submissions on the following questions:

a) does the Tribunal have power to remit the reviewable decision under s 65 of the ADT Act in the circumstances of this case?
b) if so, should the Tribunal exercise its discretion under s 65 to remit the decision?

2. Within a further 21 days, Mr Hutchinson is to provide written submissions in reply on the same questions. Mr Hutchinson should also nominate which of his alternative requests, if any, he is pressing.
3. The Tribunal will determine these questions "on the papers" pursuant to s 76 of the ADT Act.

21 If the Tribunal decides that it has no power to remit the decision, or that it does have power but should not exercise its discretion to remit, then the matter will be finalised at that time. If the Tribunal decides that it does have power to remit the decision and that it should exercise its discretion to do so, then the matter will remain on foot until the RTA makes a new decision and Mr Hutchinson decides whether to withdraw his application or proceed with an external review of the new decision.

Application for costs

22 The RTA applied for costs under s 88(1) of the ADT Act. Rather than determine that application now, I would prefer to wait until I have received submissions from the parties on the remitter issue. Those submissions may include any further submissions in relation to costs.

Orders

The Tribunal does not have jurisdiction to make a decision based on either of the applicant’s amended requests for documents.