Court of Appeal
New South Wales
Case Title: Chand v Administrative Decisions Tribunal & Anor Medium Neutral Citation: [2011] NSWCA 131 Hearing Date(s): 2 May 2011 Decision Date: 02 June 2011 Jurisdiction: Before: Giles JA at [1], Hodgson JA at [77], McColl JA at [78]
Decision: (a) So far as Ms Chand appeals pursuant to s 119 of the Administrative Decisions Tribunal Act 1997, refuse leave to appeal against the Appeal Panel's decision as to costs and dismiss the appeal against the Appeal Panel's dismissal of the appeal to it;
(b) So far as Ms Chand applies for relief by way of judicial review, dismiss her application;
(c) Ms Chand pay RailCorp's costs of the proceedings.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: FREEDOM OF INFORMATION - application for access to documents - appeal to Appeal Panel from review by Tribunal of agency's determination - Appeal Panel dismisses appeal - application for relief to Supreme Court - appeal or judicial review - applicant complained that Tribunal had not ensured that relevant material was disclosed under s73(5)(b) Freedom of Information Act 1989 - no occasion for Tribunal to make further enquiries to the existence of further relevant material - applicant complained that access should have been given to documents not in existence at time of application - entitlement only to documents held at time of application - other complaints not upheld - relief refused.
Legislation Cited: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Government Information (Public Access) Act 2009
Supreme Court Act 1970Cases Cited: Administrative Decisions Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140;
Chand v RailCorp [2009] NSWADT 44;
McGuirk v University of New South Wales [2009] NSWCA 321; (2009) 75 NSWLR 224;
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429;
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155;
Radar Investments Pty Ltd and Health Insurances Commission[2004] AATA 166;
University of New South Wales v McGuirk [20006] NSWSC 1362;Texts Cited: Category: Principal judgment Parties: Bimla Chand - Appellant
Administrative Decisions Tribunal - First Respondent
RailCorp - Second RespondentRepresentation - Counsel: Appellant in person
S Free - Second Respondent- Solicitors: Appellant in person
I V Knight - First Respondent (submitting appearance)
I V Knight - Second RespondentFile number(s): 2009/298134 Decision Under Appeal - Court / Tribunal: - Before: K P O'Connor, PresidentS Montgomery, MemberR Fitzgerald - Non judicial member - Date of Decision: 10 November 2009 - Citation: Chand v RailCorp [2009] NSWADTAP 64 - Court File Number(s) 099020 Appeal Panel Publication Restriction:
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- Case
- [2011] NSWCA 131
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Supreme Court were whether the Tribunal had failed to ensure the disclosure of all relevant material as required by section 73(5)(b) of the *Freedom of Information Act 1989*, and whether Ms Chand was entitled to access documents that were not in existence at the time of her application. The court also considered other complaints raised by Ms Chand.
The court reasoned that there was no occasion for the Tribunal to make further enquiries regarding the existence of additional relevant material, as the applicant's complaints did not establish such a need. Furthermore, the court held that an applicant's entitlement to documents under the Act is limited to those in existence at the time the application is made, and therefore, access could not be granted to documents not yet created. The court found no merit in Ms Chand's other complaints.
Consequently, the Supreme Court refused leave to appeal against the Appeal Panel's decision as to costs and dismissed the appeal against the Appeal Panel's dismissal of the appeal to it. Ms Chand's application for relief by way of judicial review was also dismissed, and she was ordered to pay RailCorp's costs.
Orders
Orders of the court
(a) So far as Ms Chand appeals pursuant to s 119 of the Administrative Decisions Tribunal Act 1997, refuse leave to appeal against the Appeal Panel's decision as to costs and dismiss the appeal against the Appeal Panel's dismissal of the appeal to it;
(b) So far as Ms Chand applies for relief by way of judicial review, dismiss her application;
(c) Ms Chand pay RailCorp's costs of the proceedings.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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