C v New South Wales Scientific Committee

[2008] NSWADT 42

CITATION:

C v New South Wales Scientific Committee and anor [2008] NSWADT 42

DIVISION:

General Division

PARTIES:

APPLICANT
C

FIRST RESPONDENT
New South Wales Scientific Committee

SECOND RESPONDENT
Leda Developments Pty Ltd

FILE NUMBER:

073015

HEARING DATES:

On the papers

SUBMISSIONS CLOSED:

28 November 2007

 
DATE OF DECISION: 

27 February 2008

BEFORE:

Wilson R - Judicial Member

CATCHWORDS:

Freedom of Information Act - access to documents - confidential material

MATTER FOR DECISION:

Principal matter

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997

CASES CITED:

N/A

REPRESENTATION:

APPLICANT
S Higginson, solicitor

FIRST RESPONDENT
P Barley, solicitor

SECOND RESPONDENT
No appearance

ORDERS:

The publication or broadcast of any matter contained in documents lodged with the Tribunal in these proceedings, which would disclose the applicant’s name or address, or which could lead to the identification of the applicant, his name or his address is prohibited.

REASONS FOR DECISION

1 These proceedings were initially commenced in this Tribunal by way of review of a decision made by the respondent pursuant to the provisions of the Freedom of Information Act 1989 (NSW). During the course of preparation for hearing the parties resolved the issues between them with the consequence that the applicant filed a notice of withdrawal of the proceedings on 4 September 2007. The resolution achieved did not require the Tribunal to reach any determination in relation to the decision under review.

2 However, the parties have joined in an application for a suppression order to be made pursuant to the provisions of section 75(2) of the Tribunal’s enabling legislation. Directions were made as to the filing of written submissions in relation to this application, which have been complied with. Joint submissions were first filed but these were followed by an additional submission from the respondent.

3 The parties are of common ground that the Tribunal has power to make such an order, however they differ to some extent as to the terms of the order that should be made. The extent that the parties differ may be seen from the written submissions filed.

4 The exercise of the Tribunal’s powers conferred by section 75(2) is conditioned on a finding that “it is desirable to” make such an order. The proceedings were brought by the applicant in order to protect his identity. This, together with the resolution of the proceedings in a way that will protect the applicant’s identity, is sufficient reason for the Tribunal making an order of the type here sought. It will set the resolution at nought if such protection is not afforded. The respondent accepts the applicant’s submissions in this regard and consents to an appropriate order being made. Therefore the only issue for consideration is the terms of the order that should be made.

5 The applicant is anxious to protect his identity and therefore seeks a suppression of his name and address and any information that would, or could, identify him. The respondent however, is concerned that the order made should not be so wide as to affect its dealings with information that it may have on its records that have no nexus with the proceedings in the Tribunal. Both points of view are rational and require an order that would satisfy each of them.

6 Consequently, the Tribunal will make an order prohibiting the publication or broadcast of any matter contained in documents lodged with the Tribunal in these proceedings which would disclose the applicant’s name or address or which could lead to the identification of the applicant, his name or his address.

7 The provisions of section 75(2B) enable this order to be varied should there be proper cause to do so, without any express time limitation, but the Tribunal expresses no view as to whether this power would persist after the Tribunal has finally dealt with this application and has become functus officio. Until this question is addressed authoritatively it would not be appropriate to express this order in terms that it is permanent. Whether or not is has this effect will depend upon the operation of the statute.