Hutchinson v Roads & Traffic Authority [2006] NSWADT 22 (27 January 2006)

Last Updated: 27 January 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Hutchinson v Roads & Traffic Authority [2006] NSWADT 22


PARTIES: APPLICANT
Rowan Hutchinson
RESPONDENT
Roads & Taffic Authority



FILE NUMBERS: 053110

HEARING DATES: 20/10/05

SUBMISSIONS CLOSED: 20/10/2005



DECISION DATE: 27/01/2006

BEFORE: Hennessy N - Magistrate (Deputy President)





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED: Project Blue Sky v ABA [1998] HCA 28; [1998] 194 CLR 355

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 the applicant’s amended request 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.3
If either party wishes to apply for costs, an application together with written submissions in support of the application is to be filed and served within 21 days of the date of this decision. If either party wishes to respond to an application for costs, written submissions are to be filed and served within a further 21 days
The Tribunal will then determine any application for costs "on the papers" in accordance with s 76 of the ADT Act.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 The applicant, Mr Hutchinson, worked for the Roads and Traffic Authority (RTA) until 12 January 1998 when he was suspended from duty. The RTA decided to recommend that he be dismissed from employment. In April 1998 the RTA made the decision to dismiss him. Mr Hutchinson appealed to the Government and Related Employees Tribunal (the GREAT) against both the recommendation and the dismissal. Shortly after the decision to suspend him, Mr Hutchinson applied to the RTA under the Freedom of Information Act 1989 (FOI Act) for his employee file and any other records the agency held about him. After that, he made several further applications for documents relating to his employment. The application which was originally the subject of these proceedings was made on 7 October 2004 and requested the following information:

Documents submitted between RTA and the GREAT Tribunal in relation to GREAT Appeals 259 of 1998 and 310 of 1998. File notes of any telephone conversations or any correspondence or notes about these GREAT appeals. In particular, any documents that may indicate bias or other improper conduct. Also any documents that may put into question the ability of the RTA appointee to sit on the Tribunal, or that he was not properly appointed or any instructions he may have been given by the RTA.

2 The two GREAT Appeals referred to in the application were the appeals from the decision to recommend dismissal and from the decision to dismiss. The agency refused to give Mr Hutchinson access to the documents he requested. The refusal was based on the exception in s 25(1)(a1) of the FOI Act. That provisions states that:

(1) An agency may refuse access to a document:

(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,

3 I refer to this exception in these reasons as the as the "resources exception." On 29 April 2005, the RTA affirmed its decision after an internal review. Mr Hutchinson submitted that the RTA could not rely on the resources exception because it had not complied with s 25(5). That provision prevents an agency from relying on the resources exception unless it has endeavoured to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency’s resources. In his statement to the Tribunal Mr Hutchinson narrowed his request. The request was narrowed again at the hearing.

4 Six questions arise for consideration. They are:

(a) what is the decision that Mr Hutchinson has asked the Tribunal to review?
(b) has the RTA complied with s 25(5)?
(c) if not, what is the effect of any non-compliance with s 25(5)?
(d) if the Tribunal has jurisdiction to review the decision, is there any utility in reviewing that decision?
(e) does the Tribunal have jurisdiction to make a decision based on Mr Hutchinson’s amended request for documents?
(f) 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?

5 The decision that the Mr Hutchinson applied to the Tribunal to review is the decision of the RTA made on 29 April 2005 in relation to Mr Hutchinson’s request for documents dated 7 October 2004.

Has the RTA complied with s 25(5)?

6 Section 25(5) states that:

Subsection (1) (a1) does not permit an agency to refuse access to a document without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions.

7 In relation to Mr Hutchinson’s request for documents made on 7 October 2004, the agency admits that it did not endeavour to assist Mr Hutchinson to amend his application. Mr Youngman, the Manager of the Records Access Unit of the agency, gave evidence that as the agency had already attempted to assist Mr Hutchinson to narrow his request in relation to previous applications for the same documents, he did not need to make any further efforts to do so in relation to this application. Mr Youngman gave evidence of the history of Mr Hutchinson’s FOI applications to the RTA in relation to GREAT documents.

8 It is not necessary at this stage to make a finding as to whether or not the RTA complied with s 25(5). That is because of my conclusion set out below that non-compliance does not affect the Tribunal’s jurisdiction.

What is the effect of any non-compliance with s 25(5)?

9 Section 6(2) and (3) of the ADT Act, provide that:

(2) For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment.
(3) For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it.

10 Even if the RTA failed to comply with s 25(5) and its subsequent decision was beyond power, the Tribunal still has jurisdiction to review the decision. Nor is it necessary for the Tribunal to determine whether a failure to comply with s 25(5) is a failure to comply with an essential preliminary condition or merely a failure to comply with a procedural condition. (Project Blue Sky v ABA [1998] HCA 28; [1998] 194 CLR 355.) Either way, the Tribunal has jurisdiction to review the decision.

If the Tribunal has jurisdiction to review the decision, is there any utility in reviewing that decision?

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. As I have said, Mr Hutchinson narrowed his request for documents in his statement and again at the hearing.

Does the Tribunal have jurisdiction to make a decision based on Mr Hutchinson’s amended request?

11 I have dealt with this issue in another decision: Hutchinson v RTA [2006] NSWADT 21. I concluded that the Tribunal has no jurisdiction to make a decision based on Mr Hutchinson’s amended request for documents. I adopt the reasoning in that decision at [8] to [14].

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

12 I discussed this issue in Hutchinson v RTA [2006] NSWADT 21 but decided not to determine it until receiving submissions from the parties. Similarly, in this case, it would be a breach of procedural fairness to determine the issue without first hearing 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.
3. The Tribunal will determine these questions "on the papers" in accordance with s 76 of the ADT Act.

Application for costs

13 If either party wishes to apply for costs, an application together with written submissions in support of the application is to be filed and served within 21 days of the date of this decision. If either party wishes to respond to an application for costs, written submissions are to be filed and served within a further 21 days. The Tribunal will then determine any application for costs on the papers in accordance with s 76 of the ADT Act.

Orders

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